ORAL COMPLAINTS CAN PROVIDE BASIS FOR FLSA RETALIATION CLAIM
BY: Nexsen Pruet, PLLC
The United States Supreme Court recently ruled that the anti-retaliation provision
of the Fair Labor Standards Act (FLSA) extends to an employee’s oral complaints. The
anti-retaliation provision, 29 U.S.C. § 215(a)(3), makes it illegal for an employer “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 FLSA]...” (emphasis added). In Kasten v. Saint-Gobain Performance Plastics Corp.,
131 S.Ct. 1325 (2011), the Court held that the term “any complaint” includes oral and
written complaints. The decision in Kasten continues a recent trend of rulings that have
expanded employment-related anti-retaliation laws.
Facts of Case
In October 2006, Saint-Gobain Performance Plastics Corp. employee Kevin Kasten
allegedly began orally complaining that the location of the company’s time clocks prevented
employees from being paid for time they spent donning and doffing required protective
gear prior to reporting to their job location and after finishing their shifts. From October
through December 2006, the company disciplined Kasten for failing to clock in and out as
required by company policy. A third warning, issued in November 2006, resulted in a one day
suspension. Kasten allegedly continued to complain about the location of the time
clocks and did not clock in and out as required. Ultimately, the company suspended Kasten
on December 6, and then terminated his employment five days later.
Following his termination, Kasten filed a lawsuit against Saint-Gobain in which he
claimed he had been fired in retaliation for his complaints about the location of the time
clocks. A federal district court ruled in favor of Saint-Gobain, finding that the FLSA’s antiretaliation
provision did not apply to oral complaints. On appeal, the Seventh Circuit Court
of Appeals also ruled in favor of Saint-Gobain. The Supreme Court disagreed and reversed
the lower courts’ decisions.
Supreme Court’s Ruling
The Court conducted a lengthy statutory interpretation exercise to reach the
conclusion that the anti-retaliation provision extends to oral complaints. First, it determined
that the word “file” has different meanings depending on context; therefore, a simple
dictionary definition application of “file” did not resolve the issue of whether the word
applies to both oral and written complaints. The Court then turned to an analysis of what
it referred to as “functional considerations.”
In conducting this additional analysis, the Court looked to Congress’ intent in
enacting the FLSA. Reasoning that Congress intended for the statute to cover oral
complaints, it observed that a narrow interpretation of the term “filed any complaint” would
undermine the FLSA’s purpose of prohibiting “labor conditions detrimental to the maintenance
of the minimum standard of living necessary for health, efficiency, and general well-being
of workers.” Referencing a quote by Franklin Roosevelt at the time of enactment of the
FLSA, the Court noted, “Why would Congress want to limit the [FLSA] 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?”
To further support its decision, the Court cited the views of federal administrative
agencies to which Congress has delegated the right to enforce laws such as the FLSA.
It specifically noted that the U.S. Secretary of Labor has interpreted “any complaint” to
cover oral and written complaints. The Court similarly cited the Equal Employment
Opportunity Commission and held that these federal agencies’ interpretations are
reasonable and consistent with the FLSA.
Addressing Saint-Gobain’s argument that oral complaints would not provide sufficient
notice to an employer that an employee has actually made an FLSA complaint, the Court
held that in order for a complaint to fall within the protection of the anti-retaliation provision,
a complaint “must be 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.”
Practical Impact
The Court’s ruling does not create a need for wholesale changes. It does, however,
create an opportunity for a checkup on policies and practices for the intake and handling
of workplace complaints. Retaliatory acts can create liability. Accordingly, employers
should ensure that supervisors, especially front-line supervisors, have up-to-date training
and understand the importance of promptly addressing oral and written complaints of
all types, without taking any retaliatory action. In the event an oral or written complaint
is made by an employee, the employer should be prepared to promptly investigate and
take any necessary corrective action. Finally, employers should clarify – through their
policies, employee handbooks and training practices – that employees will not face
retaliation if they make oral or written complaints under the FLSA or other similar
employment laws.
This advisory is a publication of Nexsen Pruet, PLLC. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.
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