March 24, 2011
Supreme Court Finds Oral Complaints Can Form Basis for FLSA Retaliation Suit
Submitted by Shaun Haley, Of Counsel with the Las Vegas office of Ogletree Deakins. The article was drafted by the attorneys of Ogletree Deakins, a national labor and employment law firm that represents management. This information should not be relied upon as legal advice.
On March 22, with Justice Stephen Breyer writing for the 6-2 majority, the U.S. Supreme Court held that an employee may proceed with his retaliation lawsuit brought under the Fair Labor Standards Act (FLSA). According to the high court, the statutory term "filed any complaint" includes oral, as well as written, complaints. This ruling signals yet another expansion of the anti-retaliation laws. Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, U.S. Supreme Court (March 22, 2011).
Kevin Kasten was employed by Saint-Gobain Performance Plastics Corp. in Portage, Wisconsin. According to company policy, hourly employees must use a time card to swipe in and out of time clocks located in the plant.
During 2006, Kasten received three disciplinary notices (one verbal and two written) due to several "issues" he had with regard to punching in and out on the time clock. The third notice, which was issued in November 2006, was accompanied by a one-day suspension. In addition, Kasten was warned that "[t]his was the last step of the discipline process" and if another violation occurred, further discipline (including termination) could result. Kasten signed each notice, acknowledging that he read and understood it.
From October through December 2006, Kasten alleged that he verbally complained to supervisors about the location of the time clocks. According to Kasten, the location of the time clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Saint-Gobain denied that Kasten complained to any of his supervisors about the time clock location.
On December 6, Saint-Gobain suspended Kasten based on his fourth violation of the company's timekeeping policy. Five days later, the company terminated his employment. Kasten then sued Saint-Gobain under the FLSA, claiming that he had been fired in retaliation for his verbal complaints regarding the location of the time clocks. The trial judge ruled in favor of the company and Kasten appealed. The Seventh Circuit Court of Appeals upheld the dismissal of Kasten's suit, finding that the FLSA's anti-retaliation provision does not cover oral complaints. The case ultimately reached the U.S. Supreme Court.
The FLSA includes an anti-retaliation provision that forbids employers "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act]." The sole question before the high court was whether the term "filed any complaint" includes oral as well as written complaints.
In writing for the majority, Justice Breyer first noted that the text of the statute alone cannot provide a conclusive answer because the word "filed" has different meanings in different contexts. The Court found that some dictionary definitions of the word contemplate a writing while others permit the use of the word "file" in conjunction with oral material. State statutes and federal regulations similarly contemplate oral complaints. "Even if the word 'filed,' considered alone, might suggest a narrow interpretation limited to writings," the majority wrote, "the phrase 'any complaint' suggests a broad interpretation that would include an oral complaint."
Given that the plain text of the FLSA's anti-retaliation provision leaves the oral/written question unresolved, the Court turned to Congress' intent in enacting the statute. According to the majority, several functional considerations indicate that Congress intended the statute to cover oral complaints. The Act seeks to prohibit "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." A narrow interpretation of the term "filed any complaint" would undermine this basic objective, the Court wrote. In reaching this conclusion, the majority noted: "Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the Act's complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly the illiterate, less educated, or overworked workers who were most in need of the Act's help at the time of passage?"
The Court further held that the views of the federal administrative agencies that are delegated the right to enforce such laws as the FLSA should be given weight. The Secretary of Labor has held the view that the words "filed any complaint" cover oral and written complaints. Likewise, the Equal Employment Opportunity Commission has set forth a similar view in its Compliance Manual. The Court found that these agency views are not only reasonable but consistent with the Act.
Finally, the Court refused to consider the employer's argument that the FLSA's anti-retaliation provision applies only to complaints filed with the government. According to the majority, the company did not raise this issue in its certiorari briefs and its resolution is not a "predicate to an intelligent resolution" of the oral/written question. Thus, concluding that oral complaints should fall within the scope of the phrase "filed any complaint" in the FLSA's anti-retaliation provision, the Court returned Kasten's suit to the lower court to decide whether he would be able to satisfy the Act's notice requirement.
According to Alfred B. Robinson, Jr., a shareholder in Ogletree Deakins' Washington, D.C. office who previously served as the acting Administrator of the Wage and Hour Division of the U.S. Department of Labor (DOL): "In this decision, the Supreme Court has clarified that a worker's oral complaints to his or her employer are protected by the anti-retaliation provision of the FLSA. In reviewing several factors including the statutory language, Congressional intent and the practices of the DOL, the Court struck a balance between the objectives of the FLSA to protect employees and to provide an enforcement mechanism that is fair to employers." Robinson continued: "The impact of this decision should not be great because most employers already are attuned to complaints from employees that an employer is not in compliance with the law whether the employee complains in writing or orally. As the Court noted, a clear and detailed oral complaint to an employer is just as sufficient as a written complaint to place the employer on notice that an employee is asserting his or her rights under the FLSA and invoking the protections of the Act against retaliation. The next question, and perhaps better one, which the Court did not decide is whether such oral or written complaints should be filed with a government agency in order to invoke the anti-retaliation protection of the FLSA. In his dissent, Justice Antonin Scalia found that these anti-retaliation protections should not apply to complaints made by an employee to his or her employer."