How on Earth Can You Possibly "File" an Oral Complaint?: An Analysis of the Boundaries of § 215(a)(3) of the Fair Labor Standards Act

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The Fair Labor Standards Act ("FLSA" or the "Act") requires most employers to pay minimum wages and overtime to employees working more than forty hours per week.1 To protect employees from retaliation by their employer if they "file any complaint" with regard to FLSA-related issues, Congress enacted § 215(a)(3).2 Despite the seemingly plain and clear meaning of the phrase "filed any complaint," courts are split over how to interpret this language. Specifically, the courts of appeals are divided on the question of whether § 215(a)(3) protects employees who make informal oral complaints-for example, oral complaints made at work to a supervisor.3 The strict view is that the plain language of this provision limits the causes of action.4 The broad interpretation protects oral complaints because § 215(a)(3) was meant to address employee fears of retaliation for raising complaints.5

As the split between the circuits grows and the number of retaliatory complaints increases,6 resolution of the inter-circuit dispute becomes increasingly important.7 While the goal of the FLSA is to protect employees, an interpretation of § 215(a)(3) that protects any oral complaint made in the workplace- informal oral complaints-would put employers at a disadvantage. First, the FLSA is already deferential to employees. But if an expansive approach is adopted, the employer will have to disprove that the employee verbally complained, a much more difficult task than if the employee had to follow a more formal procedure, particularly during discovery.8 Second, protecting oral complaints opens the courts up to frivolous lawsuits where an employee "manufacture[s] a retaliation claim" after being fired.9 Third, as a result of frivolous lawsuits, employers will be subject to significant penalties if the employee is successful.10 An employer may even be forced to settle with an undeserving employee so as to avoid litigation costs and potential liability.

This Note argues that it is necessary to find a balance between the liberal and strict approaches when interpreting the anti-retaliatory provision of the FLSA. Part I of this Note provides background on the FLSA, its retaliatory provision, and a proposed amendment to the retaliatory provision currently before the Senate and House of Representatives. Part II addresses the various arguments the courts of appeals consider to arrive at their conclusion on how to interpret § 215(a)(3), including abiding by the plain language, examining the purpose of the Act, and comparing it to similar anti-retaliation provisions. Though the language is unambiguous, Part III argues that the policy and purpose of § 215(a)(3) requires courts to look past its clear language. However, this Note concludes that it would be improper for courts to protect informally made oral complaints from retaliation. As a matter of best practice, an employee should be required to put his complaint in writing in order to be covered by § 215(a)(3).11


The history and background of the FLSA is important to understand before examining its retaliation scheme. This background understanding describes what Congress did, and did not, intend when creating § 215(a)(3). In addition, while the anti-retaliation provision has not changed for seventy-two years, there are proposed amendments to § 215(a)(3) currently pending before the Senate and House of Representatives.12

A. The FLSA Was Enacted as a Means of Protecting Employees

The FLSA was passed by Congress and signed by President Franklin D. Roosevelt on June 25, 1938 in the heart of the Great Depression.13 President Roosevelt declared that it was perhaps "the most far-reaching, . . . far-sighted program for the benefit of workers ever adopted."14 The central aim of the act was to achieve certain minimum labor standards.15 The Supreme Court has stated that the "remedial and humanitarian" provisions of the FLSA as a whole are not to be applied in a "narrow, grudging manner. …