If an employee makes an oral complaint about an employer’s pay or time-keeping practices, but never puts the complaint in writing, can the employee take advantage of the Fair Labor Standards Act’s anti-retaliation provision? In Kasten v. Saint- Gobain Performance Plastics Corp., the U.S. Supreme Court recently decided that the answer is yes – an employee’s oral complaint is sufficient to invoke the Act’s protection against retaliation.
Plaintiff Kevin Kasten, a manufacturing employee, made oral complaints to his employer about the location of the company’s time clock, which he believed prevented employees from being paid for time spent donning and doffing protective gear. Kasten was subsequently terminated, and he filed suit under the Fair Labor Standards Act (“FLSA”) claiming that his discharge violated the FLSA’s anti-retaliation provisions. The U.S. District Court for the Western District of Wisconsin dismissed Kasten’s case, finding that he was not protected by the FLSA because he failed to make a written complaint. On appeal, the 7th U.S. Circuit Court of Appeals affirmed the dismissal. The Supreme Court, however, reversed both lower courts, concluding that Kasten’s oral complaints were sufficient to bring him under the FLSA’s retaliation protection.
Justice Stephen Breyer, writing for the six-Justice majority, reasoned that an oral complaint satisfies the FLSA’s requirement that the complaint be “filed.” The majority observed that the word “file,” in both its technical definitions and its use in other statutes and regulations, encompasses oral statements. Additionally, Breyer found that protecting only written complaints could strip protection from “illiterate, less educated, and over worked workers,” which would be contrary to the FLSA’s goals. The Court further instructed, however, that the FLSA requires “fair notice” to the employer that the employee is raising a complaint – and not merely “letting off steam.” Thus, the Court held that to be “filed” (and thus protected), “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 statutes and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.”
It is important to note that the majority declined to consider the issue of whether a complaint must be made externally to the government, rather than internally to the company, in order to trigger the FLSA’s retaliation protections. Although the company attempted to argue that purely internal complaints are inadequate, the majority held that the issue had not been properly preserved for review.
What It Means
The Supreme Court’s decision reinforces the fact that employers should take oral complaints just as seriously as written complaints. It seems that a prudent employer will treat complaints regarding timekeeping, pay and pay practices much as we have learned to treat complaints of harassment and discrimination. For example, in light of the uncertainty regarding whether a complaint is “sufficiently clear and detailed” to merit FLSA retaliation protection, employers should ensure that supervisors are trained to recognize and properly document and report whenever employees raise concerns or complaints about timekeeping, pay practices, and the like. Employers should also consider adjusting their policies so that employees are directed to make complaints to those individuals who can best investigate the matter, such as inhouse counsel or human resources representatives. Finally, employers should carefully consider their potential legal exposure prior to taking any adverse action (e.g. termination) against an employee who has arguably made a complaint, be it formal or otherwise.