On March 22, 2011, the United States Supreme Court, in a 6-2 opinion authored by Justice Breyer, held that oral complaints of a violation of the Fair Labor Standards Act (FLSA) constitute protected activity under the FLSA’s anti-retaliation provision. This decision, Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011), resolves a conflict in various 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.
Background & Procedural History
Plaintiff Kevin Kasten orally complained to Saint-Gobain Performance Plastics Corporation (the Company) officials that the location of the Company’s time-clocks prevented workers from receiving credit for time spent donning and doffing their work clothes, which resulted in FLSA violations. More specifically, he reported this issue through internal grievance procedures and to his shift supervisor, a human resource employee, his lead operator, the human resources manager and operations manager. The Company responded that Kasten did not make any significant complaint, and stated that it terminated Kasten’s employment based on his repeated failures to appropriately record his time.
Kasten then brought suit against the Company, claiming that he suffered retaliation in violation of the FLSA’s anti-retaliation provisions. The FLSA’s anti-retaliation provision precludes employers from “discharge[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]….”
The Company moved for summary judgment, stressing that the FLSA’s anti-retaliation provisions require complaints to be in writing, and noting that Kasten’s complaint was oral. The District Court granted Saint-Gobain’s motion, finding that the FLSA did not protect oral complaints, the Seventh Circuit affirmed and the Supreme Court granted Kasten’s petition for a writ of certiorari.
The Supreme Court’s Analysis
The Supreme Court began its review by examining the text of the statute, specifically the meaning of the word “filed” in various contexts. First, the Court observed that many dictionaries do not necessarily limit the scope of the word “file” to apply only to written instruments. The Court noted that legislators, judges and administrators have each used the word “file” in conjunction with oral statements. Likewise, the Court found that regulations promulgated by federal agencies sometimes permit oral complaints, and that at the time the FLSA was passed oral filings were a known phenomenon. The Court also looked at other instances where the word “filed” and its variants are used in the FLSA, and noted that the varying usage adopted in the statute left open whether oral complaints were sufficient. In addition, the Court looked to the anti-retaliation provisions of other statutes for guidance, and specifically at whether the relative breadth of anti-retaliation provisions in other statutes signaled an intent by Congress to limit the scope of the FLSA language to oral complaints. Ultimately, the Court found that the text of the statute was insufficient to decide whether an oral complaint was protected activity.
The Court then turned to functional considerations. The Court found that limiting the provision’s coverage to written complaints would undermine the FLSA’s primary objectives, including its goal to “prohibit labor conditions detrimental to the maintenance of the minimum standard of living necessary for house, efficiency, and general well-being of workers.” The anti-retaliation provision allows for effective enforcement of the FLSA’s guarantees because it prevents workers from “quietly suffering substandard conditions” out of “fear of economic retaliation.” The Court stated that requiring a complaint to be in writing would obstruct the “illiterate, less educated, and overworked workers,” who most need the protections afforded by the FLSA.
The Court also opined that limiting the scope of the anti-retaliation provision to the filing of written complaints would cut the flexibility needed by the agencies charged with enforcing its protections. For example, if oral complaints were not covered, federal agencies could not use hotlines, interviews, and other oral methods of receiving complaints.
As additional justification, the Court looked for guidance from its treatment of the National Labor Relations Act’s (NLRA) anti-retaliation provision. The Court found that the NLRA’s provision, which it has broadly interpreted to cover employees beyond what is suggested by the text of the statute, suggests that the FLSA, which has similar enforcement needs, should also be afforded broad interpretation. Finally, the Court found additional support for its decision in the Secretary of Labor’s interpretation of the language in question. Because Congress delegated enforcement powers to federal administrative agencies, the Court affords a “degree of weight” to the agency’s interpretation. Here, the Secretary of Labor has consistently held that the words “filed any complaint” cover oral, as well as written, complaints. The Court found this to be a reasonable interpretation that is consistent with the FLSA, and that reflects the agency’s careful consideration.
Big Question Left Unanswered?
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 declined to consider this issue because the Company did not address it in its petition for a writ of certiorari, raising it for the first time only in its merit briefs. The Court reserved this decision for a later date, possibly after further action by the lower courts.
At the same time, however, the Court’s decision leaves open the possibility that it would find oral complaints to a private employer sufficient to trigger the protections of the Act. 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.” The Court also remanded the case to the District Court to determine whether the oral complaint was sufficiently clear and detailed to put the Company on notice.
Justice Scalia, in his dissent (which was joined by Justice Thomas with the exception of one footnote) focused on the distinction between reporting to the government versus reporting to the employer. He argued that Kasten’s failure to submit his complaint to a government body was dispositive, opining that neither a written nor an oral complaint made only to an employer invokes the anti-retaliation provision of the FLSA. The Dissent supported its decision with the fact that: (1) every other use of the word “complaint” in the FLSA refers to an official filing with a government body; (2) the word “complaint” in the phrase “filed any complaint” draws meaning from the verb to which it is connected and suggests a formality beyond mere employee-to-employer complaints; (3) the phrase “filed any complaint” is listed with three other types of protected activity, each of which involved an interaction with a government authority, suggesting that it too involves such interaction; and (4) the history of the retaliation provision’s enforcement.
The Court’s decision leaves employers in an uncertain position. While employers should always be attentive to allegations of violations of the FLSA and other laws, under Kasten v. Saint-Gobain Performance Plastics Corp., employers should be increasingly vigilant in the face of oral complaints, as they may be viewed as on equal footing as a written complaint for a subsequent retaliation claim. While it remains uncertain whether oral complaints made only to an employer, as opposed to the government, will trigger the FLSA’s anti-retaliation provisions, employers should act prudently and take steps to ensure that supervisors are attuned to complaints regarding wage-and-hour violations, and that processes are in place to escalate, investigate and act on those complaints. Employers also should focus more attention on ensuring that no adverse actions occur as a result of such a complaint.