The Supreme Court, in a 6-2 opinion by Justice Stephen Breyer (Justice Kagan did not participate in the decision), recently held that for purposes of triggering anti-retaliation protection under the Fair Labor Standards Act ("FLSA"), an employee "complaint" may be made orally, as well as in writing. The Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., not only eases the burden on employees to invoke retaliation protection under the FLSA, but highlights the importance for employers to seriously consider all employee complaints, whether written or oral, which might concern a violation of the FLSA.
The FLSA, which sets forth employment rules for minimum wages, maximum hours, and overtime pay, contains an anti-retaliation provision that forbids employers from discharging or otherwise discriminating against an employee who has "filed any complaint" concerning a violation of the FLSA. Kasten arose from an anti-retaliation lawsuit that Kevin Kasten filed against his former employee, Saint-Gobain Performance Plastics Corp. ("SG"), alleging that SG had discharged him because he had orally complained to his supervisors and human resources personnel about the location of company time clocks that prevented workers from receiving credit for time they spent donning and doffing protective gear and walking to work areas. This activity, Kasten alleged, led SG to terminate him.
For its part, SG contended that it had dismissed Kasten because he had, despite repeated warnings, failed to record his comings and goings on the time clock. In granting SG’s motion for summary judgment, the District Court ruled that the FLSA does not protect oral complaints like those allegedly made by Kasten. The Seventh Circuit Court of Appeals affirmed.
On appeal, the issue facing the Supreme Court was whether the phrase "filed any complaint" encompasses oral complaints, as well as written. Finding the statutory language insufficiently clear, the Court examined congressional intent and determined that "functional considerations" indicated that Congress had intended the retaliation protections to cover oral complaints. In particular, the Court noted that at the time Congress passed the FLSA, a high percentage of American workers were illiterate. The Court further reasoned that limiting the scope of the anti-retaliation provision to written complaints would remove “necessary flexibility” from enforcement of the FLSA by preventing government agencies from using hotlines, interviews, and other oral methods of receiving complaints. Responding to SG's argument that written complaints ensure fair notice that an employee is complaining about a FLSA violation and not merely "letting off steam," the Court held that the phrase "filed any complaint" contemplates "some degree of formality ... to the point where the [employer] has been given fair notice that a grievance has been lodged." (emphasis added) Ultimately, the Court ruled that a complaint, in order to fall within the anti-retaliation provision, “must be sufficiently clear and detailed for a reasonable employer to understand it ... as an assertion of rights protected by [the FLSA].” Unfortunately, the Court provided no guidance as to the circumstances under which that threshold can be met.
In the wake of Kasten, employers must be responsive to employees’ oral complaints and carefully consider how to address such complaints when they arise. During employee discipline and discharge investigations, care should be taken to determine whether the employee has made oral complaints that might concern FLSA violations. Employers and their counsel are also wise to augment employee complaint procedures so that oral complaints are reliably documented. Additionally, training should be provided to supervisors to ensure that they convey employee complaints to human resources personnel or their direct superiors.
If you would like a copy of the Kasten opinion, or have any questions concerning any area of Employment Practices, please do not hesitate to contact one of our Employment & Labor Law Practice Group members.
