The United States Supreme Court recently ruled in Kasten v. Saint-Gobain Performance Plastics Corp., a 6-2 decision, that the Fair Labor Standards Act (FLSA) prohibits retaliation against an employee who "files" an oral complaint. The Court concluded that the FLSA prohibits retaliation against an employee who has "filed any complaint," and, while the word "filed" may suggest "some degree of formality" in the employee's complaint, the FLSA does not specifically require that a complaint be in writing.

Kasten had received several warnings and was finally terminated for repeated violations of company policy regarding clocking in and out of work. However, he had complained to his supervisors and the company's HR department regarding the placement of the company's time clocks, particularly that such placement resulted in employees not being paid for the time they spent putting on and taking off their work gear, contrary to the FLSA's "donning and doffing" provisions. Kasten alleged that he "filed" many such complaints, and specifically indicated that he was considering filing a lawsuit. After raising this issue with the company, Kasten alleges that he was terminated. For its part, the company denied that Kasten filed any significant complaints about the timekeeping issue.

After his termination, Kasten filed suit against the company alleging that he was terminated in retaliation for making oral complaints to the company in violation of the FLSA. The District Court granted summary judgment to the company, holding that while complaints to an employer could constitute protected activity under the FLSA, oral complaints were not protected. The Seventh Circuit affirmed this decision on appeal, and the Supreme Court then agreed to hear the case.

“Filing” may include written or oral complaints

The Supreme Court concluded that while the FLSA's anti-retaliation provision requires that an employee "file" a complaint and provide fair notice to employers, in some contexts "filing" may include oral complaints in addition to written ones. The Court also noted that the agencies which enforce the FLSA have consistently interpreted "filed any complaint" to include oral complaints. If an employee orally files a complaint that is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context," it may be afforded protection under the FLSA, according to the Supreme Court. However, the Court did not provide any practical guidance regarding when such circumstances may arise.

Importantly, however, the Court expressly declined to address the specific issue of whether an employee's complaint, oral or written, must be made to an administrative agency or judicial body - or whether it might also be made directly to a private employer - in order to be protected under the FLSA's anti-retaliation provision. This omission is particularly glaring because the complaints at issue in Kasten were made only orally to the employer, rather than to any governmental agency. However, in the majority opinion, the Supreme Court noted that the employer failed to raise this issue in response to Kasten's petition for certiorari, and therefore the Court refused to directly address it. The majority opinion did strongly imply that oral complaints made to an employer should be considered protected activity, noting that limiting the FLSA's anti-retaliation protections to only written complaints would discourage employees from participating in internal grievance procedures established by employers. Moreover, the Court reasoned that protecting only written complaints would likely inhibiting use of complaint procedures by those who would find it difficult to reduce their complaints to writing, particularly less educated or overworked workers.

The Court's decision in Kasten may be surprising to some, but it should reaffirm a best practice for all employers - namely, to be particularly attentive to all employee complaints regarding wage and hour issues covered by the FLSA. All such complaints should be promptly investigated, documented and resolved. This is so regardless of how such complaints are "filed," whether oral or written, made internally or to a governmental agency. Employers should carefully consider how to handle such complaints, especially before taking any adverse action against the employee who "filed" them.

Employers may also want to take other steps to reduce the risk of retaliation claims. For instance, employers should consider revising their employee handbooks or implementing new policies to set forth the particular information that an employee must provide in a "sufficiently clear and detailed" manner to the employer in order for the employee to have "filed" a complaint. If a complaining employee fails to provide such information but then files a retaliation claim against the employer, the employer may have a viable argument that the complaint in question was not sufficiently clear to trigger the FLSA's anti-retaliation provisions. Such a policy should also include a detailed description of how the employer will investigate, document and resolve all such complaints that it receives.