Don’t Automatically Dismiss the Ever-Complaining Employee


Employers can become frustrated with employees who constantly complain about every little thing (often in a rude manner) and end up brushing off the complaints. They may even terminate the employee for their “inappropriate” communications. But a recent case from the U.S. Court of Appeals for the Sixth Circuit highlights the risks of doing so without careful consideration.

Background of the Case. In Caudle v. Hard Drive Express, Inc., a truck driver complained about various company policies throughout his employment, including lack of reimbursement for repairs and payment for the repair time, which he asserted was illegal. The driver threatened to report the company to government authorities on various occasions. He was eventually terminated after a series of “argumentative” text messages with the company owner mainly concerning vacation pay, but also referencing payment for repairs and a threatened complaint to the “labor board.” (Of note, the owner referenced the fact that the driver was an at-will employee who could be terminated for no reason – but see our blog post, At-Will Employment is a Fairy Tale…). He sued, and the trial court threw out his lawsuit on the grounds that the text messages only concerned vacation pay, which is not required or protected by state law or the Fair Labor Standards Act.

The Court’s Decision. On appeal, however, the Sixth Circuit reversed the trial court’s ruling, finding sufficient grounds to support a retaliation claim under the FLSA. In order to bring an FLSA retaliation claim, an employee must show that: (1) they engaged in a protected activity under the FLSA, such as complaining about unpaid wages; (2) the employer knew of the activity; (3) the employer took adverse employment action against the employee; and (4) there was a causal connection between the protected activity and the adverse employment action. Here, contrary to the trial court, the Sixth Circuit found that there was protected activity – it was unclear whether some of the text messages from the driver referred to (unprotected) vacation pay or (protected) reimbursement for repair costs, but certainly could be interpreted to include the latter. Moreover, there were other specific references to the repair cost issue, even though the owner initiated that topic, including the threat to report the company to the “labor board.”

But even beyond the text message exchange, the Sixth Circuit found that the driver’s prior complaints about reimbursement served as an additional basis for his FLSA retaliation claim. Although the trial court found these to be “mere grumblings” that did not put the employer on notice of the protected activity, the Sixth Circuit found that there was sufficient evidence that the company clearly knew the driver had complained about the lack of reimbursement and threatened to report them to government authorities.

Lessons Learned. So, when dealing with a constantly-complaining employee, it is important for employers to carefully consider what the employee is complaining about – a valid issue may be buried in a plethora of noise. Failure to address those valid complaints appropriately can create risk of liability. And complaints cannot necessarily be considered in isolation – prior complaints may be connected to current ones in ways that trigger possible protections for employees.

In terms of the manner of complaint, employers can require employees to communicate in a professional and respectful manner about individual concerns, and discipline them for failing to do so. (Although if the complaints themselves involve valid issues, the employer would be wise to tread carefully and consult with counsel before taking disciplinary action). But if the employee’s complaints are about group concerns (like a policy of failing to provide reimbursement impacting multiple employees), then their communication, even if unprofessional or disrespectful, may be protected under the National Labor Relations Act – even for non-union employees.