Supreme Court Rules That Oral Complaints Are Covered By Fair Labor Standards Act’s Anti-Retaliation Provision
In yet another decision extending employee protections, the United States Supreme Court has issued its much-anticipated opinion in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834. On March 22, 2011, by a vote of 6 to 2, the Court held that oral complaints are sufficient to support retaliation claims under the federal Fair Labor Standards Act (“FLSA”). The majority, however, refused to address whether the FLSA covers an oral complaint when it is made to a private employer rather than to a governmental agency.
From October 2003 to December 11, 2006, Kevin Kasten worked for Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”) at its Portage, Wisconsin manufacturing plant. Employees at the plant were required to punch in and punch out on a time clock. Saint-Gobain’s employee handbook stated that failure to comply with the time-clock policy would result in disciplinary action, including termination. Employees were also required to wear company-supplied protective equipment while working. Kasten claimed that, due to the location of the time clocks, employees had to put on their required protective equipment before punching in and take off their protective equipment after punching out. As a result, employees were not paid for the time it took them to put on and take off their protective clothing.
While employed with Saint-Gobain, Kasten repeatedly violated the time clock policy and received several warnings. Kasten was ultimately terminated, and he brought a lawsuit alleging that he was terminated in retaliation for making oral complaints to his supervisors and Human Resources personnel about the location of time clocks. Specifically, Kasten alleged that he repeatedly protested orally that the location was improper because it deprived employees of pay for time they spent putting on and taking off protective equipment.
On December 5, 2007, Kasten filed a lawsuit against Saint-Gobain in the United States District Court for the District of Wisconsin, claiming that Saint-Gobain terminated him in retaliation for his verbal complaints about the location of the time clocks in violation of the FLSA. The anti-retaliation provision of the FLSA provides, in relevant part, that it is unlawful “to discharge or in any 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 this chapter.” 29 U.S.C. § 215(a)(3) (emphasis added). Kasten claimed that he “filed” a complaint when he orally complained to his supervisors. Saint-Gobain moved for summary judgment, arguing that (1) the FLSA only protects complaints submitted to the government, and (2) even if the anti-retaliation provision covers internal complaints made to private employers, an employee must submit a written, not oral, complaint to be entitled to protection.
The district court granted Saint-Gobain’s motion for summary judgment, determining that the FLSA requires employees to submit written, as opposed to oral, complaints. Kasten appealed to the Seventh Circuit. On appeal, the Seventh Circuit agreed with the district court, and held that unwritten oral complaints are not “filed” and therefore are not protected activity. The Seventh Circuit also held, however, that informal intra-company complaints are protected; it is not necessary that an employee submit his or her complaint to the government. Kasten sought rehearing, but the Seventh Circuit denied his petition. On March 22, 2010, the United States Supreme Court granted certiorari and agreed to hear the case.
Supreme Court’s Decision
In reversing the decision of the Seventh Circuit, the United States Supreme Court held that the statutory phrase, “filed any complaint,” contemplates oral as well as written complaints. Justice Breyer, writing for the majority, first analyzed the text of the statute, but ultimately determined that the text of the statute by itself could not provide a definite answer since the word “filed” has different meanings in different contexts. For example, some dictionary definitions of “filed” contemplate a writing while other definitions permit using “file” in conjunction with oral material. Aside from dictionary definitions, the Court also noted that various state statutes and federal regulations contemplate oral filings. Even if the word “filed,” considered in isolation, might suggest a narrow interpretation, the Court explained that “any complaint” suggests a broad interpretation that would include an oral complaint.
Since examining the plain text of the statute did not resolve the question, the majority turned to congressional intent. The majority concluded that a narrow interpretation of “filed any complaint” would undermine the basic objective of the FLSA: to prohibit “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” The Court emphasized the fact that, at the time Congress passed the FLSA, many American workers were illiterate, less educated, or overworked. Thus, including oral complaints within the phrase “filed any complaint” furthered the FLSA’s purpose of protecting workers.
Finally, the Court noted that the agencies tasked with enforcing the FLSA—the Department of Labor (“DOL”) and Equal Employment Opportunity Commission (“EEOC”)—have consistently construed “filed any complaint” to include oral complaints. The majority believed that the DOL’s and EEOC’s views were both reasonable and consistent with the FLSA.
After deciding that oral complaints can be protected under the FLSA’s anti-retaliation provision, the Court recognized that the phrase “filed any complaint” contemplates some degree of formality to ensure the an employer receives fair notice that an employee is asserting his or her statutory rights. Thus, to fall within the scope of the FLSA’s anti-retaliation provision, the Court held that “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.” The Court did not, however, provide any guidance as to when this standard is met; it merely indicated that such a standard can be met by both oral and written complaints. The Court remanded the case to the lower court to determine whether Kasten’s oral complaint was sufficient to satisfy the fair notice requirement and trigger the FLSA’s protection.
Interestingly, although the Court held that oral complaints are covered by the FLSA’s anti-retaliation provision, the Court refused to consider Saint-Gobain’s argument that the anti-retaliation provision only applies to complaints filed with the government, not those filed with the employer itself. Because Saint-Gobain failed to raise the issue in its response to Kasten’s petition for certiorari, the Court declined to address it. There is currently a circuit split on this issue, and the issue will remain open until the Supreme Court decides to address it.
What this Decision Means for Employers
In light of the Court’s decision, employers must be cautious when an employee makes any complaint concerning practices covered by the FLSA, whether that complaint is oral or written. Employers should be especially cautious before taking an adverse action against such an employee. When discipline and discharge situations arise in the workplace, employers must ensure that they ask involved supervisors about any oral complaints made by the employee; focusing on written complaints will not protect the employer.
Despite the questions the Court leaves open in Kasten, one thing is clear: internal, oral complaints may be protected activity and, as such, employers must take steps to minimize the risks associated with potential retaliation claims. Since several other federal statutes, including the Occupational Safety and Health Act (“OSHA”), contain similar “filed” language in their anti-retaliation provisions, the Kasten decision could have implications beyond the FLSA. It would be prudent for employers to treat all federal anti-retaliation statutes that require a “filed complaint” as though they cover oral complaints as well. Employers should train management and Human Resources personnel so that they know how to appropriately respond to, document, and investigate employee complaints. By doing so, employers may greatly reduce the risk that they will be subject to liability for valid personnel decisions.
 Justice Kagan recused herself from the case because the Justice Department had filed an amicus brief while she was Solicitor General.
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