On March 22, 2011, we posted an article about the US Supreme Court holding in Kasten v. Saint-Gobain Performance Plastics Corp.,  in which the Court held that a retaliation cause of action could lie even if the complaint was not in writing, but was made verbally.  We cautioned about the danger of that holding for employers.  Now, the US Department of Labor has issued  Fact Sheet 77A codifying this holding in DOL guidelines.  The Fact Sheet makes clear that oral complaints are protected and internal complaints to the employer, as opposed to (or, in addition to, complaints to the DOL) are also protected.

The Fact Sheet also makes clear that the retaliation protection applies to all employees of an employer even in those instances in which the employee’s work and the employer are not covered by the FLSA.

The Fact Sheet also makes clear that the retaliation protection applies where there is no current employment relationship between the parties, such as an instance where there is alleged retaliation against an employee by a former employer.

Now that this holding has been formalized in DOL guidance and will "enjoy" widespread dissemination, my recommendation is that employers implement a mechanism (similar to the complaint mechanism in anti-harassment policies) where employees may complain about pay errors, or classification issues, or working time issues.  These complaints would then be investigated and if found to have merit, an appropriate remedy issued to the employee.  The important point is that even if the complaint is made orally, the employer (e.g. HR Department) should reduce the complaint to writing so there exists a record of what was complained of, the action taken and the resolution.