In a 6-2 decision, the US Supreme Court ruled on March 22 that oral complaints of violations of the Fair Labor Standards Act (FLSA) are protected by the statute’s antiretaliation provision. However, the Court stopped short of ruling on whether such oral complaints made to private employers (as opposed to the Government) are protected. Kasten v. Saint-Gobain Performance Plastics Corporation, No. 09-834 (US March 22, 2011).

Facts

Kevin Kasten claimed that his former employer, Saint-Gobain Performance Plastics Corporation (Saint-Gobain) located its timeclocks between the area where Kasten and other workers put on (and took off) their work-related protective gear and the area where they performed their assigned tasks. He alleged that the location prevented workers from receiving credit for the time they spent putting on and taking off their work clothes–contrary to the FLSA’s requirements. Kasten asserted that he repeatedly called the unlawful timeclock location to Saint-Gobain’s attention–in accordance with Saint-Gobain’s internal grievance-resolution procedure. He also alleged that he raised concerns with his shift supervisor, a human resources employee and manager, his lead operator, and the operations manager, telling many of them that if the matter went to court, the company would lose.

Saint-Gobain denied that Kasten made any significant complaint about the timeclock location. It claimed that it dismissed Kasten because after being repeatedly warned, he failed to properly punch in and out on the timeclock. Because of the procedural posture of the case, the Supreme Court had to accept Kasten’s version of the facts. That’s because the district court granted summary judgment for Saint-Gobain, holding that oral complaints of FLSA violations are not protected, and the US Court of Appeals for the Seventh Circuit affirmed. The Supreme Court agreed to review the case because there was a split on the issue among numerous Circuit Courts of Appeal.

Analysis

The FLSA’s antiretaliation provision makes it unlawful for employers “to discharge or in any other 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 [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.”

After examining various dictionaries, statutes, regulations and judicial decisions, the Court observed that the word “filed” has different relevant meanings in different contexts. The Court reasoned that even if the word “filed,” considered alone, might suggest a narrow interpretation limited to writings, “the phrase ‘any complaint’ suggests a broad interpretation that would include an oral complaint.”

The Court noted that when the Act was passed, illiteracy rates were particularly high among the poor. It rhetorically asked “[w]hy 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?”

According to the Court, limiting the scope of the antiretaliation provision to written complaints would also take needed flexibility out of the Act’s enforcement mechanisms. “It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints.”

Saint-Gobain argued that the FLSA also seeks to establish an enforcement system that is fair to employers. According to the company, an employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation. The Court agreed that employers must receive fair notice: “[a]lthough the dictionary definitions, statutes, regulations, and judicial opinions we considered … do not distinguish between writings and oral statements, they do suggest that a ‘filing’ is a serious occasion, rather than a triviality.” As such, “the phrase ‘filed any complaint’ contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.”

The Court explained, “[t]o fall within the scope of the antiretaliation provision, 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 and a call for their protection.”

The Court also gave deference to the views of the US Department of Labor and the Equal Employment Opportunity Commission, who have consistently taken the position that oral complaints of violations of statutes they enforce are protected.

Are Oral Complaints to Private Employers Protected?

Saint-Gobain also claimed that it should prevail because Kasten complained to a private employer, not to the Government. The company made this argument in the lower courts, which rejected it. But because Saint-Gobain allegedly said nothing about it in response to Kasten’s petition for certiorari, and only first mentioned the issue in its brief on the merits, a majority of the Court declined to address the issue.

In his dissenting opinion, which was joined by Justice Clarence Thomas, Justice Antonin Scalia claimed that the Court did not need to address the issue of whether a complaint needed to be oral or written, because in his view the provision does not apply to any intracompany complaints. “The plain meaning of the critical phrase and the context in which it appears make clear that the retaliation provision contemplates an official grievance filed with a court or an agency, not oral complaints–or even formal, written complaints–from an employee to an employer.”

Conclusion

The Department of Labor and various workers’ rights organizations have hailed the Kasten decision as bestowing important rights on employees. Not surprisingly, many management groups have expressed concern about the Court’s continued broad interpretation of antiretaliation provisions, and its failure in this case to provide more guidance on how much formality an oral complaint must contain to gain protection.

As for the issue left open for the lower courts, it is likely that most will follow the trend and hold that complaints of FLSA violations made to private employers, whether oral or written, are protected by the antiretaliation provision. This means that employers must continue to be vigilant when disciplining and discharging employees who have made any type of wage and hour complaint, whether meritorious or not. Consistency in approach and documentation of legitimate reasons for discipline will be two very important elements of any defense against a retaliation claim.