On March 22, 2011, the United States Supreme Court resolved a split among the federal appellate courts by ruling that the anti-retaliation provision of the Fair Labor Standards Act (the “FLSA”) extends to oral as well as written complaints made by employees. See Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 131 S. Ct. 1325 (Mar. 22, 2011).
The anti-retaliation provision of the FLSA appears on its face to be significantly narrower than that of other statutes. Thus, the FLSA forbids employers from
discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA] or has testified or is about to testify in such proceeding . . . .
29 U.S.C. § 215(a)(3). In contrast, for example, Title VII prohibits discrimination against any person who has “opposed any practice made an unlawful employment practice by” that statute. The language of the FLSA is susceptible to a much narrower interpretation and, indeed, the Seventh Circuit had adopted such an interpretation in Kasten; similarly, as acknowledged by the Supreme Court in Kasten, the Second Circuit had previously found that a complaint had to be made in writing to be considered “filed” under the FLSA’s anti-retaliation provision. See Lambert v. Genesee Hosp., 10 F. 3d 46 (2d Cir. 1993).
The Supreme Court disagreed. The Court reviewed dictionary definitions of “filed,” the usage of that term in other statutes, the purposes underlying the FLSA, and the views of the Department of Labor in ruling that oral complaints that are “sufficiently clear and detailed for a reasonable employer to understand” that the employee is asserting rights protected under the statute trigger the protection of the anti-retaliation provision contained in 29 U.S.C. § 215(a)(3). Justice Scalia, in a dissent joined by Justice Thomas (except for one footnote, in which Justice Scalia described as “incoherent” the doctrine under which the majority purported to defer to the interpretation of the Department of Labor), presented a vigorous argument for a narrower interpretation of the statute based upon the statutory language and common usage of the key terms at the time the statute was passed.
The Kasten decision does not effect any significant change, in practical terms, in how employers address employee complaints concerning wage and hour issues — it would have been the rare, aggressive and risk-taking employer who would have terminated an employee upon receiving an oral complaint in reliance on a narrow reading of the statute. Nonetheless, the decision serves as yet another reminder that employers must be vigilant in their practices in order to avoid retaliation claims, and should develop mechanisms to ensure that complaints are brought forward, investigated, and resolved and that managers and others understand that retaliation against complaining employees is strictly prohibited.