Yesterday, the U.S. Supreme Court held that oral complaints of a violation of the Fair Labor Standards Act (FLSA) constitute protected activity under the FLSA’s anti-retaliation provision.In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011), the Court resolved the split among jurisdictions regarding the sufficiency of oral versus written complaints, and threatens to open the floodgates to a wave of new plaintiffs who orally complain about real or perceived violations of the FLSA. Although the Court declined to consider whether an oral complaint made to a private employer rather than to the government qualifies as protected activity, the majority’s decision leaves open that possibility, and places employers in uncertain territory.
Plaintiff Kasten sued his former employer, Saint-Gobain Performance Plastics Corp., under the FLSA, alleging that the Company had fired him for verbally complaining about a violation of the statute. The Company moved for summary judgment, arguing that the FLSA’s anti-retaliation provisions require complaints to be in writing rather than presented orally, as was Kasten’s. The district court granted Saint-Gobain’s motion, finding that the FLSA does not protect oral complaints, the Court of Appeals affirmed, and the Supreme Court granted review.
In yesterday’s opinion, the Supreme Court concluded that the text of the statute, specifically the meaning of the word “filed” in various contexts, did not resolve the question of whether oral complaints fell within the scope of the anti-retaliation provision. The Court looked to various sources, including prior use by legislators, judges, administrators, agencies, the FLSA, other statutes and the dictionary, but found nothing to be dispositive.
Turning to functional considerations, the Court’s majority found that a narrow interpretation that excluded oral complaints would (1) obstruct the “illiterate, less educated, and overworked worker[s’]” access to the protections of the statute; (2) reduce the flexibility needed by the agencies charged with enforcing the law’s protections, for example, by preventing federal agencies from using hotlines, interviews, and other oral methods of receiving complaints; and (3) be inconsistent with the broad interpretation adopted for the National Labor Relations Act’s anti-retaliation provision, which has similar enforcement needs.
The six Justice majority found additional support for its decision in the Department of Labor’s interpretation that the words “filed any complaint” cover oral, as well as written, complaints. Because the Court found that the DOL’s interpretation was reasonable and consistent with the FLSA, it applied Skidmore deference and gave the Department’s decision a “degree of weight.”
Despite clearly expanding the types of complaints covered by the anti-retaliation provision to oral complaints, the majority explicitly did not consider the Company’s argument that the FLSA’s anti-retaliation provision only applies to complaints made to the government, rather than to private employers. The Court reserved this decision for a later date, possibly after further action by the lower courts.
The Court emphasized in its holding that an oral 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.” In so doing, the Court remanded the case to the district court to determine whether the Kasten’s oral complaint was sufficiently clear and detailed to put the Company on notice.
In dissent, Justice Scalia (joined by Justice Thomas) focused on the issue avoided by the majority and found that the language of the statute and the history of the anti-retaliation provision supported a finding that an employee’s complaint must be made to a government body.
Employers are well advised to be attentive to their employees' complaints. Following Kasten, it is even more important for employers to be sensitive to employees’ oral as well as written complaints regarding wages, overtime, and hours worked. Under the FLSA, oral complaints must now be viewed on essentially the same footing as those in writing. Employers should also train their managers and supervisors to recognize oral complaints and to respond to them appropriately, while also distinguishing them from mere “venting” or “blowing off steam.” Of course, following an employee’s complaint, employers need to take care to ensure that any adverse actions that may be required are not a result of such a complaint.