In a decision widening the divide between federal appeals courts, the United States Court of Appeals for the Seventh Circuit in Kasten v. Saint-Gobain Performance Plastics Corp. ruled that verbal complaints are not protected activity under the Fair Labor Standards Act (FLSA).

Kevin Kasten worked in Saint-Gobain’s high-performance plastics manufacturing plant and received numerous disciplinary notices for failing to properly punch in and out. Kasten claimed that he made several verbal complaints that the location of the time clocks did not allow employees to be paid for time spent putting on protective gear, but the company denied receiving such complaints. Ultimately, Kasten was fired for a further violation regarding the time clocks. Kasten sued Saint-Gobain under the FLSA, claiming he was retaliated against for his verbal complaints.

The FLSA deems that it is unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.” After determining that verbal complaints are not protected under the FLSA, the district court granted summary judgment to Saint-Gobain. Kasten appealed the decision to the Seventh Circuit. The Seventh Circuit noted that there is a circuit split on the issue of whether the FLSA’s retaliation provision protects verbal complaints. The Fourth Circuit has ruled that verbal complaints are not protected while the Sixth, Eighth, and Eleventh Circuits have found that verbal complaints are covered by the FLSA’s retaliation provision.

The Seventh Circuit interpreted the FLSA’s use of the phrase “file any complaint” as a deliberate narrowing by Congress which contemplated the protection of written complaints only. The court decided two questions: “whether intracompany complaints that are not formally filed with any judicial or administrative body are protected activity; and second, whether unwritten verbal complaints are protected activity.” The appeals court affirmed the district court’s holding that internal complaints are protected activity. Further, and importantly, the court found that “[l]ooking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity.” Essentially, the court held that the FLSA’s use of the phrase “to file” requires “the use of a writing” and thus only written complaints are protected.