Today, the Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp. (No. 09-834). The Court determined that oral complaints can form the basis for retaliation claims under the Fair Labor Standards Act ("FLSA"). The FLSA does not permit employers "to discharge . . . any employee because such employee has filed any complaint." Traditionally, the term "filed" was read by courts to mean that employees had to actually put their employer on notice with a written complaint. In Kasten, the Supreme Court determined that an employee's verbal complaint regarding the placement of time clocks was enough to form the basis for a retaliation claim.

The Court's decision increases the likelihood of employers facing retaliation lawsuits brought pursuant to the FLSA. Retaliation claims related to other employment statutes have been steadily increasing in the past few years. According to the Equal Employment Opportunity Commission ("EEOC"), retaliation claims rose from 18,198 filed in 1997 to 36,258 filed in 2010. Attorneys for plaintiffs also tend to assert retaliation claims in cases involving discrimination and harassment. Expect the same tactic in lawsuits brought for violations of the wage and hour provisions of the FLSA.

The FLSA permits employees to file civil lawsuits or to file complaints with the Department of Labor. The Supreme Court declined to definitively state that its decision applies to complaints made to employers or governmental agencies. The Court did state, "To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it . . . ." Because this test specifically uses the term "employer," courts are likely to construe the Kasten decision as authorizing retaliation claims against private employers. The FLSA defines an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee." This is a broad definition and means that verbal complaints made to supervisors and managers will be treated as being made to the employer. It also means employees will attempt to bring retaliation claims directly against supervisors and managers.