The U.S. Supreme Court, in a 6-2 decision, ruled on Tuesday, March 22, 2011, that the Fair Labor Standards Act (“FLSA”) protects employees who make oral complaints about a violation of the FLSA.
In Kasten v. Saint-Gobain Performance Plastics Corporation, U.S. No. 09-834 (March 22, 2011), the petitioner, Kevin Kasten, claimed his employer, Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”), fired him because he made oral complaints to his supervisors and the human resources personnel about Saint-Gobain’s donning and doffing policy. Specifically, Kasten complained that the time clock was located away from the area where he donned and doffed his personal protective equipment, causing him to not be paid for the time he spent donning and doffing each day. Saint-Gobain claims Kasten was terminated for repeated failures to clock in or out in violation of Saint-Gobain’s time keeping policy. It is undisputed that Kasten did not make any written complaints to his employer or make any complaints to the U.S. Department of Labor.
Kasten sued Saint-Gobain in federal court in Wisconsin, alleging that he had been terminated in retaliation for complaining to his employer about a violation of the FLSA. The trial court, however, found in favor of Saint-Gobain, concluding that Kasten’s oral complaints were not a protected activity pursuant to the FLSA’s anti-retaliation “file-any-complaint” language. Kasten v. Saint-Gobain Performance Plastics Corp., 619 F. Supp. 2d 608, 611 (W.D. Wis. 2008). The U.S. Court of Appeals for the Seventh Circuit affirmed the trial court’s ruling, finding that Kasten’s verbal complaints were not a protected activity because “the FLSA’s use of the phrase ‘file any complaint’ requires the plaintiff employee to submit some sort of writing.” Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 840 (7th Cir. 2009). The Supreme Court agreed to hear the case because the Seventh Circuit’s decision was in conflict with other appellate courts that had considered the issue.
The Supreme Court, in an opinion written by Justice Stephen G. Breyer, vacated the Seventh Circuit’s decision, concluding that oral complaints alleging unlawful wage and hour practices are sufficient to gain protection from retaliation under the FLSA. The Court dismissed the idea that a person must initiate a written complaint in order to be protected under the FLSA’s anti-retaliation provision. Instead, the Court defined the requirement that an employee must “file” a complaint broadly to include oral complaints about alleged unlawful wage and hour practices. Specifically, Justice Breyer concluded the phrase “any complaint” suggested a broad interpretation, including oral complaints. Justice Breyer also considered the affect on employer-created complaint policies by reasoning that excluding oral complaints would discourage the use of informal employer grievance procedures.
Although the Court agreed with Saint-Gobain that the FLSA requires the employer to have fair notice of a complaint, Justice Breyer’s opinion did not provide much guidance as to what oral complaints constitute sufficient formality to provide fair notice to employers. The Court held that an oral complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The Court, however, decided to remand the case to the lower courts to allow them to resolve the issue of whether Kasten’s oral complaints provided Saint-Gobain with sufficient notice.
The Court noted that its opinion only answered the question as to whether oral complaints are sufficient to gain protection under the anti-retaliation provisions of the FLSA, but did not resolve whether complaints, oral or written, must be made to the Government to gain these protections.
Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote a dissenting opinion to express his belief that the “file any complaint” language in the FLSA limits the anti-retaliation protections to complaints filed with a court or a governmental agency—not complaints from an employee to an employer. Justice Scalia did not believe the Court should have refrained from considering this issue because it was necessary to resolve the questions presented in this case.
Although the issue as to whether complaints made to private employers gain anti-retaliation protection pursuant to the FLSA remains unresolved, employers should be aware that the FLSA anti-retaliation protections have been broadened by this decision. The Kasten decision highlights the need for employers to have well-written and effective employee complaint procedures. If employers have a clear and reasonable process for employees to make complaints, they are more likely to identify and properly respond to complaints that could become the basis for a retaliation claim. Employer complaint procedures that require the employee to file a written complaint to initiate the process may prevent the employer from recognizing legally sufficient oral complaints. Consequently, oral complaints should be permitted to initiate the employer’s complaint process. Employers can always subsequently request that employees reduce their complaint to writing.
We hope you find this information helpful. If you have any questions about the material presented in this alert, please contact any member of Baker Hostetler's Employment and Labor Team.
Authorship Credit: Caroline M. Landt
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