FLSA’s Anti-Retaliation Provision – Oral Complaints Count


U.S. Supreme Court Clarifies that Oral Complaints of FLSA Violations are Protected

On March 22, 2011, the United States Supreme Court issued a decision in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. ____, No. 09-834 (2011), holding that an employee’s verbal, internal complaint about an employer’s alleged labor violation is protected activity under the antiretaliation provision of the federal Fair Labor Standards Act (FLSA).

Plaintiff sued his employer in federal court alleging he was terminated in retaliation for making verbal complaints to his supervisors that the location of the employer’s time clocks violated the FLSA. The FLSA’s anti-retaliation provision prohibits an employer “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act. 29 U.S.C. § 215(a)(3).

The district court granted summary judgment to the employer, concluding that while an employee’s internal complaints are protected activity under the anti-retaliation provision of the FLSA, an employee’s unwritten, verbal complaints were not protected. The Seventh Circuit Court of Appeals affirmed,
reasoning that an employee who makes a purely verbal complaint does not “file” a complaint. Since plaintiff’s complaints had been purely verbal, the Court of Appeals found the complaints were not protected. Certiorari was granted to the United States Supreme Court.

In a 6-2 decision, the Supreme Court held that the scope of the term “filed any complaint” under the
FLSA’s anti-retaliation provision encompasses both oral and written complaints. In its opinion, the
Court noted that other anti-retaliation statutes – such as the National Labor Relations Act’s antiretaliation provision – have been interpreted to protect both oral and written complaints. The Court
also held that policy reasons support the conclusion that the statute’s language should be broadly
interpreted in favor of the employee. A narrow interpretation of the language would undermine the
FLSA’s basic objective to prohibit labor conditions detrimental to the well-being of workers. Writing
for the majority of the Court, Justice Breyer stated:

“Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? . . . To limit the scope of the antiretaliation provision to the filing of written complaints . . . could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints. [I]t would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act.”

Impact on Employers
The Supreme Court’s decision in Kasten signals yet another expansion of workplace anti-retaliation laws favoring employees. Employers should have clear workplace policies in place on how to handle employee complaints. These policies should address the receipt and processing of both oral and written complaints from employees. Employers also need to make supervisors and employees aware of such policies and provide training to supervisors and employees regarding complaint procedures and prohibitions on retaliation in the workplace.

Employers with questions about employee complaints or on claims of retaliation in the workplace, or how to take proactive measures to address workplace complaints on claims of retaliation, should contact one of our labor and employment lawyers.

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