In a 6-2 decision, on March 22, 2011, in Kasten v. Saint-Gobain Performance Plastics Corp.
, the United States Supreme Court held that oral complaints relating to wages and hours of employment constitute protected conduct under the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”). The employee, Kasten, filed suit against his employer after he was fired allegedly for complaining orally to his supervisors and human resources representatives that the company’s placement of time clocks violated the FLSA. The Seventh Circuit dismissed Kasten’s claim, holding that the FLSA protects from retaliation only an employee who “filed any complaint” under the statute. Because Kasten never reduced his complaint to writing, the Seventh Circuit reasoned, he had not “filed” any complaint and thus had not participated in protected activity.
The Supreme Court reversed the Seventh Circuit, holding that the FLSA’s “file” language did not limit complaints to those made in writing and that holding otherwise would undermine the statute’s objectives and adversely effect enforcement of its protections. The Court made clear, however, that not just any oral complaint is sufficient. Rather, to serve as the basis for a retaliation charge, the oral complaint requires “some degree of formality” sufficient to put the employer on fair notice that the employee is asserting rights protected by the FLSA. Accordingly, the Court remanded the case to the District Court to assess whether Kasten’s complaints met that standard.
Of note, the only question before the Supreme Court in Kasten was whether the FLSA prohibited retaliation against employees who make purely oral complaints about alleged violations of federal wage and hour law. The majority decision of the Court did not address an alternative challenge, raised late by the employer, that the anti-retaliation provision of the FLSA only protects complaints filed with governmental agencies. That argument, which was cited with approval in the dissent by Justice Scalia, presumably will be heard on remand.
In the meantime, the practical significance of Kasten is that employers should not take adverse action against an employee for making a complaint that reasonably could be construed to assert a wage claim, whether the complaint is oral or in writing. In addition, employers should ensure that supervisors are trained to recognize when complaints reasonably could be viewed as raising FLSA issues and that all complaints are taken seriously and promptly investigated.