On March 22, 2011, with Justice Breyer writing for the majority, the United States Supreme Court held that oral, and not only written, complaints are covered by the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”). The 6-2 decision (Justices Scalia and Thomas dissented, and Justice Kagan recused herself) settled a split among circuits as to whether FLSA’s anti-retaliation provision requiring that an employee “file any complaint” in order to invoke its protections covers oral as well as written complaints.
The petitioner in the case, Kevin Kasten, a former employee of Saint-Gobain Performance Plastics Corp., sued his employer claiming that he was improperly terminated after orally complaining that the placement of time clocks in the workplace did not properly ensure that employees were paid for time spent donning and doffing their protective gear. Kasten alleged that his termination was in violation of FLSA.
The U.S. District Court for the Western District of Wisconsin dismissed the complaint on the grounds that Kasten’s oral complaint did not fall within the statutory language of FLSA’s anti-retaliation provision. The Seventh Circuit affirmed the dismissal.
The Supreme Court, in vacating the Seventh Circuit’s decision, first looked at the statutory language at issue and determined that the term “filed” did not necessarily exclude the possibility of oral complaints. Nevertheless, determining that the textual analysis did not conclusively resolve the question, the Court went on to look at the “functional considerations” behind the provision. It found that, in enacting FLSA, Congress did not intend to limit its scope to written complaints. To do so would create a roadblock for “illiterate, less educated, and overworked workers” who frequently need FLSA’s protections the most.
Importantly, while the Court held that oral complaints are covered by FLSA’s anti-retaliation provision, it did not eliminate the need for some degree of formality. The Court explained that there is a “fair notice” requirement, such that the anti-retaliation provision may be invoked only in cases where the complaint is sufficiently clear and detailed so that the employer receives “fair notice” of it.
While resolving the circuit split on the issue of oral complaints, the Court left open a related question – also the subject of a split among the circuits – namely, whether or not the anti-retaliation provision applies to complaints made to private employers or only to those made to the government. The Court declined to settle the question because the claim was not raised by Saint-Gobain in its response to the petition for certiorari.
The impact of the Supreme Court’s Kasten decision has yet to be seen, but employers should proceed carefully and take precautions to address their complaint procedures, both oral and written, so as to be well-equipped to handle any such grievances in accordance with FLSA.
A big “thank you” to BRR intern Hannah Lubin for putting this post together!