Earlier this year, the Supreme Court surprised many employers by ruling that an employee’s internal, verbal complaint was covered by the federal law that protects employees from retaliation who have “filed any complaint or instituted . . . any proceeding” related to the Fair Labor Standards Act (“FLSA”). See Kasten v. Saint-Gobain Performance Plastics Corp. ___ U.S. ___, 131 S.Ct. 1325 (2011). Kevin Kasten sued his former employer, Saint-Gobain Performance Plastics Corporation, after it discharged him for the stated reason that he failed to accurately record his time worked on the company time clock. Kasten’s lawsuit claimed that the company unlawfully discharged him in retaliation for complaining about time keeping and the time clock. Kasten admitted that he had not filed any written complaints with the company or a governmental agency prior to discharge, but maintained that he complained orally to his shift supervisor about his “concern” that “it was illegal for the time clocks to be where they were’” because it excluded “the time you come in and start doing stuff.”

Most companies have an “open door” policy that encourages employees to discuss questions or concerns with their supervisor or department manager. Open door meetings are often treated as informal discussions to let employees “vent.” If an employee stopped by his supervisor’s office and complained about the location of the time clock, most companies have no procedure for documenting that conversation, initiating an investigation, or recording resolution of the issue. In fact, most companies would not realize that the employee had just engaged in conduct protected by the federal law governing wages, the Fair Labor Standards Act. A recent United States Supreme Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., shows that these informal discussions can have serious legal repercussions.