ALERT - Oral Complaints Protected Under FLSA Anti-Retaliation Provision

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April 7, 2011

In a decision issued March 22, 2011, the United States Supreme Court held that an oral complaint of an alleged violation of the Fair Labor Standards Act (FLSA) is protected conduct under the Act’s anti-retaliation provision. Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 563 U.S. (2011).
The plaintiff in the case, Kevin Kasten, alleged that his employer Saint-Gobian placed its timeclocks in a location that prevented workers from receiving credit for the time they spent putting on and taking off their work clothes, which allegedly constitutes a violation of the FLSA. In his anti-retaliation lawsuit, Kasten claimed that he repeatedly made oral reports of the alleged unlawful timeclock location to various Saint-Gobian personnel and that he was discharged because of these oral complaints. 

Both the district court and Seventh Circuit Court of Appeals dismissed his claim on summary judgment, holding that the FLSA did not protect oral complaints. The U.S. Supreme Court accepted further appeal in light of conflict among the Circuit Courts and reversed the Court of Appeals' holding.

Justice Breyer, writing for the Court, began his analysis with the statutory text itself. The FLSA’s antiretaliation provision forbids employers, "To discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee."

The Court looked at various dictionary definitions of the word "filed," including legislative, administrative and judicial uses of the word “filed,” regulations promulgated by federal agencies, how the word "filed" was used in other parts of the FLSA and anti-retaliation provisions of other Acts. The Court concluded that, “The text, taken alone, cannot provide a conclusive answer to [the Court’s] interpretative question.”

The Court then considered the basic objectives of the FLSA. The Court found that for enforcement, the FLSA relies upon information and complaints received from employees seeking to vindicate their rights. The Court questioned, “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who find it difficult to reduce their complaints to writing, particularly illiterate, less educated or overworked workers?” The Court also found it persuasive that the Department of Labor has consistently held the view that the words “filed any complaint” include oral complaints.

Saint-Gobian argued that the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation. In response to this argument, the Court clarified that “To fall within the scope of the anti-retaliation provision, a complaint [whether written or oral] 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.”

Proactive Steps

In response to the Kasten holding, employers should consider various proactive steps to avoid similar retaliation claims. For example, employers can develop and communicate to employees clear and specific complaint procedures. Managers and human resource departments might be trained on complaint in-take procedures, including familiarity with company policy prohibiting retaliation in response to good faith complaints. Employers may be best served by carefully documenting any oral or written allegations of FLSA violations and the actions taken in response to those allegations. Further, if an employee makes such a written or oral complaint, it is also prudent to carefully document any subsequent change in that employee’s employment status and the facts supporting that change so as to avoid any claims of retaliation.

For more information, contact your Briggs and Morgan attorney or a member of the Employment, Benefits and Labor Section, ranked as a Minnesota Band 1 practice in Chambers USA.