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March 2011

Supreme Court Finds Verbal Complaints to Be a Sufficient Basis for Retaliation Claims Under the Fair Labor Standards Act

On March 22, 2011, the Supreme Court issued Kasten v. Saint-Gobain Performance Plastics Corporation, No. 09-834 (2011), addressing whether the anti-retaliation provision of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 215(a)(3), which makes it unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ," applies to both oral and written complaints made by employees. The Court in a 6 to 2 decision held that the anti-retaliation provision does indeed apply to both forms of complaints.

Petitioner, Kevin Kasten, brought a retaliation lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation ("Saint-Gobain" or "the Company") under the FLSA alleging that the Company discharged him because he orally complained to Saint-Gobain officials about the location of timeclocks, which prevented employees from being credited for time spent taking on and off work clothes. Saint-Gobain asserted that Kasten was terminated for failing to record his comings and goings after repeated warnings and not in retaliation for his timeclock complaints. Moreover, the Company argued that his timeclock location complaints were not protected activity under the FLSA because they were not in writing.

In making its ruling, the Court focused on whether the statutory term "filed any complaint" includes oral as well as written complaints within its scope. The Court specifically looked to reasonable interpretations of the text of the statute and advised that many dictionary definitions of "filed" contemplate both written and oral material. Moreover, the Court noted that although the word "filed" might suggest a narrow interpretation, the statement "any complaint" within the statute suggests a broad interpretation that would include an oral complaint.

The Court next looked to legislative intent and concluded that Congress would not have wanted to limit enforcement of the retaliation provision by preventing access to those who might have difficulty writing complaints. Moreover, a narrow interpretation would discourage employees from first attempting to utilize informal work procedures to secure compliance with the FLSA, for fear that they would be left unprotected.  The Court also gave weight to interpretations made by the Secretary of Labor and the Equal Employment Opportunity Commission regarding oral complaints. Accordingly, after weighing all the factors, the Court concluded that it should broadly interpret the statutory language to include verbal complaints. 

Unfortunately for employers, the majority opinion declined to address whether a complaint must be made to a governmental entity to be considered protected activity under the FLSA or whether an internal complaint (whether oral or written) to the employer is sufficient. Justice Scalia in dissent stated that he would have dismissed the appeal on this basis alone, since the language of the statute makes clear that only complaints to judicial or administrative bodies are within the scope of protection. Thus, this issue is still open for debate, at least for now. However, given Justice Scalia's strong dissent, and the fact that there is currently a split among the Circuits regarding whether internal complaints are sufficient under the FLSA, the time may be ripe for the Court to address this issue in the near future.

Although employers can no longer defend a retaliation claim under the FLSA by arguing that the employee failed to make a written complaint, this decision should not greatly impact companies' employment practices. Given that other retaliation statutes encompass verbal complaints, employers should already have procedures in place for addressing complaints, whether they are verbal or written. This may be a good time for employers to revisit their internal complaint processes and ensure they are prepared to respond and address all complaints in an appropriate and legal manner.

Finally, the decision can be of great use to employers in the future with respect to the "because of" component of retaliation claims. The Court re-emphasized, as it has in the context of other retaliation statutes, that any alleged complaint, be it verbal or written, must provide "fair notice" to the employer, or the employer cannot be deemed to have terminated an employee "because of" protected activity. The Court clarified this standard as follows:

To fall within the scope of the anti retaliation provision, a 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.

Employers have found success in other contexts arguing that a complaint did not put the employer on adequate notice that the employee was invoking a particular statute and claiming a violation. The Court has sent a clear signal that such an argument will also work for the FLSA, and indeed the language in Kasten could be very helpful in the context of other retaliation statutes.

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