Publications: Employee Complaints to Patrons and Customers May Not Be Protected

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Most employers know that a wide variety of state and federal employment laws prohibit them from punishing employees for certain kinds of protected workplace speech, such as complaints of illegal discrimination or about an employer’s failure to pay overtime. But the recent decision in Burns v. Blackhawk Management Corp. makes an important point: employee complaints to patrons or to customers may not be legally protected, even when they accuse an employer of violating federal employment law.* Employees may be provoking their justifiable firings, not building retaliation cases, by seeking customers’ support for workplace changes through complaints about their employers.

Fred Burns worked for Blackhawk, a sub-contractor to FedSource, Inc., which provided construction services on a Mississippi Naval base. Blackhawk treated Burns as exempt from Fair Labor Standards Act (FLSA) overtime pay.  In an effort to convince Blackhawk that he was entitled to overtime pay, Burns complained to Blackhawk’s president, to FedSource and to the Navy about his FLSA-exempt treatment. After Blackhawk’s direct customer, FedSource, reported to Blackhawk’s president the last in a series of Burns’ complaints to FedSource, she fired him. Burns sued, claiming illegal retaliation.

While acknowledging that Burns’ numerous informal complaints to Blackhawk’s president were protected speech (for which he could not be discharged under the FLSA), the Court held that his complaints to FedSource and to the Navy were not protected. The Court dismissed Burns’ FLSA retaliation claim, finding that he "offered no justification for turning to Blackhawk’s customer in an effort to force Blackhawk to pay him according to what he believed he was entitled under the FLSA." The Court noted that "[o]nly when Burns persisted in complaining and went outside the company, against [its president’s] instruction, and complained to FedSource, Blackhawk’s direct customer, and to the Navy, Blackhawk’s indirect customer . . . did Blackhawk finally take action against him."

The Burns Court concluded:

" . . . Blackhawk has established beyond dispute that Burns was discharged, not simply because he complained that he was not being properly compensated for overtime hours, which he had done for years, but because of the unreasonable manner in which he complained. In a nutshell, there came a point when he went ‘too far.’"

In determining when employees’ complaints to customers go "too far," the Burns Court noted that "courts must apply a rule of reason, taking into consideration both the purpose of the [Fair Labor Standards] Act to protect persons reasonably engaging in opposition activity and the employer’s interests and ‘management prerogatives.’"

The Burns decision teaches that not all employee complaints are protected, particularly when they so undermine and disrupt employer-customer relations as to constitute independent legitimate reasons for termination. But employers still face a complex and risky analysis when determining whether certain employee complaints are or are not protected by one of the many employment laws prohibiting retaliation and deciding what, if any, responsive discipline they may impose. Employee complaints to customers and patrons can be especially coercive and disruptive. But sanctioning such complaints with termination or other discipline can expose employers to liability for illegal retaliation or, at the very least, the cost of defending a retaliation suit. Employers should thoughtfully review the timing of employee complaints, their subject, their audience, the history and documentation of prior discipline and the nature of the discipline presently contemplated before implementing a disciplinary action plan. Such a plan, thoughtfully crafted in close consultation with skilled employment counsel, is the best safeguard against a well-grounded firing becoming a substantial employment liability.

*Burns v. Blackhawk Management Corp., 2007 WL 710151 (S.D. Miss.) (March 6, 2007).