Until recently, the various Circuit Courts of Appeals have differed as to whether an employee’s oral complaints triggered the anti-retaliatory protections of the Fair Labor Standards Act (FLSA). In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (U.S. Mar. 22, 2011), the Supreme Court held that some oral complaints will be protected by the FLSA.

Background: The Fair Labor Standards Act

As you are probably aware, the FLSA establishes various wage and hour standards and rules. For example, the FLSA specifies the rules about minimum wage and overtime, and sets forth the “white collar” exemptions that have been discussed at length since the Department of Labor’s 2004 publication of the “Fair Pay Rules.”

In addition, the FLSA includes an anti-retaliation provision. Under that provision, an employer is prohibited from discharging or discriminating against an employee who has “filed any complaint” regarding FLSA-related issues.

The Case

Kevin Kasten, a Saint-Gobain employee, made several oral comments to his supervisor that it was illegal for the timeclocks to be in a location that prevented employees from receiving credit for the time they spent putting on and removing work-related protective gear. After a district court agreed with Kasten and held that Saint-Gobain’s timeclock placement violated the FLSA, Kasten was fired. Kasten subsequently sued Saint-Gobain in district court, alleging that he was unlawfully discharged in violation of the FLSA, which prohibits an employer from discharging an employee because the employee has “filed any complaint” that alleges a violation of the FLSA. See 29 U.S.C. § 215(a)(3). The district court held that the FLSA did not protect an employee from retaliation for making oral complaints. The Seventh Circuit affirmed.

In Kasten, the Supreme Court held that an FLSA-protected complaint may be an oral complaint, so long as it is “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.”

What Does This Mean For Employers?

  • Employers should treat each employee complaint seriously, whether it pertains to harassment, hostile work environment, discrimination, or any other workplace concern. In light of Kasten, employers are now specifically cautioned not to disregard an employee’s oral criticisms about potential violations of the FLSA. Rather, employers should seriously evaluate them to determine whether the criticism gives rise to the anti-retaliation protections afforded by the FLSA.  
  • Managers should be trained to recognize that casual complaints may constitute protected conduct under the FLSA or other federal and state laws. Oftentimes, these “informal” complaints are made first (and, routinely, only) to the employee’s immediate supervisor. Managers must know that they need to report such concerns immediately for prompt investigation, how to do so, and how to document such concerns. Managers should also know that the failure to properly report and document concerns creates liability for the company.  
  • The line between an employee’s assertion of his/her rights under the FLSA (or another federal or state law) and just expressing his/her feelings of frustration may be a fine one. Following Kasten, employers will be wise to be sensitive to any complaint (verbal or otherwise) about pay, overtime, hours worked, or other wage and hour-related concerns.