In Kasten v. Saint Gobain Performance Plastic Corp., the U.S. Supreme Court held that the provision in the Fair Labor Standards Act (FLSA) that prohibits retaliation against employees who “file” an FLSA complaint covers oral complaints made by employees.
Kevin Kasten worked for Saint Gobain Plastics Performance Corp. He complained to his supervisors, as well as to the company’s HR department, that the time clocks in the plant where he worked were located between where employees put on their work-related protective gear and where they were assigned to perform their work tasks, and therefore the employees did not get full credit 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 after raising this issue, the company terminated him. Kasten then sued the company, claiming that his termination violated the FLSA’s anti-retaliation provision.
The Supreme Court’s Decision
Saint Gobain argued that the anti-retaliation provision in the FLSA requires that, in order to “file” a complaint and thereby invoke the Act’s protections, an employee must submit something in writing. The Supreme Court disagreed, holding that in this context, to file a complaint also can include an oral complaint. The Court did, however, take into consideration Saint Gobain’s argument that a complaint must provide the employer with fair notice that the employee is making a complaint that could subject it to a later claim of retaliation, clarifying that an oral complaint will be sufficient to invoke the FLSA’s protections only so long as the complaint is “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.”
Saint Gobain also asked the Court to decide whether an employee complaint — oral or written — must be made to a administrative agency or judicial body, or whether it can be also made to a private employer. The Court, however, declined to decide that issue because Saint Gobain did not raise it in its opening brief to the Court, and instead said that the issue would have to be addressed by lower courts. In his dissent, Justice Scalia (joined by Justice Thomas) disagreed with the majority’s decision not to consider that issue, and explained that he agreed with Saint Gobain’s argument that any complaint must be made to a governmental body, and therefore a complaint made to a private employer does not trigger the FLSA’s antiretaliation provision.
Implications for Employers
The Court’s decision is yet another decision in what has been a stream of recent rulings extending employee protections, including the Court’s January 2011 decision in Thompson v. North American Stainless, LP, which extended Title VII’s anti-retaliation provision to associational discrimination claims,1 and the Court’s decision earlier this month in Staub v. Proctor Hospital, which confirmed that the “cat’s paw” theory of employer liability is valid with respect to many workplace discrimination claims.2 Given this trend, the Court’s conclusion that Congress intended the FLSA to cover both oral and written complaints is not surprising. Unfortunately, the Court’s decision not to address whether oral complaints made directly to an employer, as opposed to those made to a governmental body, trigger the anti-retaliation provision leaves a substantial question unresolved. The majority’s opinion, however, implied that internal complaints are covered under the FLSA, as the Court’s opinion noted that limiting the FLSA’s anti-retaliation protections to only written complaints would discourage employee participation in informal, internal grievance procedures.
In light of the Court’s ruling, employers should be cautious when any complaint, oral or written, is made by an employee concerning practices covered by the FLSA, even if that complaint is made internally, and particularly before taking any adverse action against that employee. Employers also may want to consider implementing a process to review and respond to internal employee complaints (oral or written) concerning FLSA-related matters. That process may include specifying what sort of information must be provided to the employer in order for an employee to “file” a complaint. If an employee fails to provide that information, the employer may have a defense to any later-filed retaliation claim by arguing that that the employee’s complaint did not provide the required information, and thus it was not “sufficiently clear and detailed” to invoke the FLSA’s anti-retaliation protections.
Because the Court did not answer the question of whether oral or written complaints made to private employers, as opposed to government bodies, trigger the FLSA’s anti-retaliation protections, decisions from lower courts will undoubtedly address this issue going forward. We will report on future developments.