Supreme Court Finds FLSA Retaliation Provision Covers Oral Complaints

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The U.S. Supreme Court held March 22 that the Fair Labor Standards Act's ban on retaliating against employees who “file” an FLSA complaint against an employer covers oral complaints, but the majority in the 6-2 ruling refused to address whether the statute covers such a complaint when it is made to a private employer rather than to a government agency (Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11).

Writing for the majority to reverse the U.S. Court of Appeals for the Seventh Circuit decision affirming a lower court's rejection of Kevin Kasten's case against Saint-Gobain Performance Plastics Corp., Justice Stephen G. Breyer said the federal wage and hour law prohibits retaliation against an employee who has “filed any complaint” under the FLSA or related to the statute. Although the majority was persuaded that the word “filed” may suggest “some degree of formality” in an employee's complaint, the statute does not require that the complaint be in writing.

If an oral 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,” it may be protected under the FLSA, Breyer wrote. Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Samuel A. Alito, and Sonia Sotomayor joined in the majority opinion. Justice Elena Kagan did not participate in the case.

'Trend line' of Increasing Protection Against Retaliation

Management attorney Lawrence Z. Lorber, a partner in the Washington, D.C., office at Proskauer, told BNA March 22 the decision was on the high court's recent “trend line” of increasing protection for employees in retaliation cases. The Labor Department, meanwhile, issued a statement calling the court's decision “a major victory for workers.”

But the high court majority declined to resolve another issue in the case, whether the FLSA retaliation provision protects employees who complain to private employers or only covers those who file complaints with the government. Saint-Gobain failed to raise the issue until after the court granted Kasten's petition for high court review, Breyer observed, and he said the question will have to be settled in the lower courts.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented from the court's ruling. Writing that the Supreme Court had the discretion to consider the question of whether FLSA's Section 215(a)(3) covers complaints made to private employers, Scalia concluded that it does not do so, making it unnecessary for the court to examine distinctions between oral and written complaints to a private business like Saint-Gobain.

Scalia observed that the majority's interpretation of the phrase “filed any complaint” was influenced at least in part by a comparison of Section 215(a)(3) to the retaliation provisions in modern statutes that he called unacceptable. “What Congress enacted in 1938 must be applied according to its terms, and not according to what a modern Congress (or this Court) would deem desirable,” Scalia wrote.

Kasten was hired in 2003 by Saint-Gobain to work in the company's Portage, Wis., high-performance plastics manufacturing plant. While he was employed by the company, Kasten alleged, he told company officials on a number of occasions that they had positioned an employee time clock between the location where employees worked and the area where they engaged in putting on and taking off work clothing.

Placement of Clock Challenged

The clock's placement resulted in employees not being paid for donning and doffing time, and Kasten alleged that he told supervisors he was “thinking about starting a lawsuit,” which he predicted “they would lose.” In fact, the Supreme Court said, the U.S. District Court for the Western District of Wisconsin agreed with Kasten in a separate lawsuit that the denial of pay violated the FLSA.

Saint-Gobain, which denied that Kasten made any significant complaint about the timekeeping issue, fired him, asserting that the employee repeatedly failed to record his comings and goings on the clock.

Kasten filed a lawsuit alleging that the firing violated Section 215(a)(3) of the FLSA, but the Western District of Wisconsin dismissed Kasten's case and the Seventh Circuit affirmed, holding that only written complaints to government officials are “protected activity” under the FLSA ( 570 F.3d 834, 14 WH Cases2d 1827 (7th Cir. 2009); 60 BTM 214, 7/7/09).

Over a dissent by three judges, the full Seventh Circuit denied Kasten's petition for rehearing (585 F.3d 310, 15 WH Cases2d 824 (7th Cir. 2009); 60 BTM 334, 10/20/09). The Supreme Court granted Kasten's petition for review in March 2010 (61 BTM 97, 3/30/10) and heard oral arguments in October 2010 (61 BTM 343, 10/26/10).

Major Advance Seen

The Labor Department, which joined the solicitor general and EEOC in filing an amicus brief that supported Kasten, said in its statement that the decision will “protect workers who make oral complaints under a variety of other whistleblower statutes administered by the Department of Labor.” Additionally, DOL said, “The decision ensures that workers with limited English skills will not be prevented from exercising their rights under the Fair Labor Standards Act due to their inability to communicate effectively in writing.”

Catherine Ruckelshaus, legal co-director of the National Employment Law Project, a nonprofit group that advocates for low-wage workers and the unemployed, and who filed an amicus brief supporting Kasten, told BNA March 22 that “we don't hear from the Supreme Court about the Fair Labor Standards Act very often” but the Kasten decision is an important interpretation of the act, particularly for low-wage workers.

Ruckelshaus noted that, especially for low-wage workers who may be less likely to put their complaints in written form, the court's recognition of a statutory protection for oral complaints is very important, she said.

Ruckelshaus commented that the majority opinion “tells the legal community that the court is willing to look at the modern context and purpose of a statute,” and said she believes the question not answered by the court--Section 215(a)(3) coverage of complaints made to an employer--will be resolved in favor of protecting workers, since nothing in the language of the act appears to preclude such protection.

Management Lawyers Troubled

Rae Vann, a management lawyer with Norris, Tysse, Lampley & Lakis in Washington, D.C., who filed an amicus brief on behalf of the Equal Employment Advisory Council, said the high court has recently construed other retaliation statutes broadly, and she was not entirely surprised by the outcome in Kasten. However, she said she was troubled by the majority's failure to give employers more guidance about what kind of formality and notice to an employer would be required in order to trigger protection of an employee's “complaint.”

Vann expressed concern that employers will have to be alert because the justices did not draw clear lines between “off the cuff” comments that would not fall within the scope of Section 215(a)(3) and those deserving of statutory protection.

Lorber said Scalia's dissent made a valid observation that the court's recognition that an oral complaint may be protected brings the risk that an employee about to be disciplined for an unrelated reason may make a last-minute complaint on some wage and hour issue in hopes of discouraging the employer from taking a legitimate personnel action. The answer for employers, he said, is to properly document events and their own actions so that they will be prepared to show that any action against an employee who has made a protected complaint was taken only for lawful reasons.

By Lawrence E. Dubé

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