U.S. Supreme Court Holds Oral Complaint Sufficient To Trigger FLSA's Retaliation Provision
November 2011
Continuing its trend of broad
protection of employee retaliation claims, the U.S. Supreme
Court ruled 6–2 in March that an oral complaint over timekeeping
practices constitutes protected activity implicating the
anti-retaliation provision of the Fair Labor Standards Act
(FLSA) and that employee complaints need not be written to enjoy
statutory protection.
by
Paul J. Siegel, Esq.
Jackson
Lewis LLP
In Kasten v. Saint-Gobain Performance
Plastics Corp., ___ S. Ct. ___, 2011 U.S. LEXIS 2417
(2011), the court remanded for determination, however, the
question of whether any complaint made solely to an
employer—orally or in writing—falls under the FLSA's protective
mantle. Justice Elena Kagan did not participate in the case.
Facts
Petitioner Kevin Kasten alleged that his employer,
Saint-Gobain Performance Plastics Corp., terminated him because
he made internal complaints to management about the company's
timekeeping practices. Without addressing any of the underlying
factual issues, the district court ruled that an oral complaint
is insufficient to implicate the FLSA's anti-retaliation
provision and granted the company summary judgment. The Seventh
Circuit Court of Appeals affirmed that ruling.
Oral Complaint Protected
The Supreme Court disagreed and vacated the appeals court
decision. Justice Stephen Breyer, writing for the majority, held
that the FLSA protects oral complaints. He observed that the
FLSA anti-retaliation provision forbids employers from "discharg[ing]
or in any other manner discriminat[ing] against any employee
because such an employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to"
the Act.
Justice Breyer's reasons for deeming oral complaints
protected by the FLSA include the following:
- Certain dictionaries, regulations of federal
agencies other than the Department of Labor
(which enforces the FLSA), and state statutes
indicate that a person could "file" an oral
statement.
- The phrase, "any
complaint," used in the statute, suggests a
broad interpretation for what constitutes a
complaint.
- Franklin Roosevelt, in promoting the FLSA,
said the Act was designed to protect
"illiterate, less educated" workers, who might
not appreciate fine statutory distinctions.
- Illiteracy studies from the early part of the
20th century support the view that the FLSA was
enacted to allow such marginalized employees to
make complaints that would be protected from
retaliation.
- It is appropriate to defer to the Department
of Labor, which has taken the position that
"filed any complaint" encompasses oral
complaints.
Unresolved Issue
Left unresolved in the court's ruling is the issue of whether
the FLSA's "filed any complaint" language was meant to include
complaints, oral or written, that an employee brings to his or
her employer internally, without involving a governmental agency
or court filing. Justice Breyer found the question was not
appropriate for review.
In Kasten, Justice Antonin
Scalia strongly disagreed with the majority, finding that the
internal-complaint issue was properly raised by the company in
its opposition to Kasten's petition for high court review.
According to Justice Scalia, the court was issuing an "advisory
opinion" by addressing the oral/writing issue without addressing
whether an internal complaint constituted protected activity. On
the merits, he would conclude that the "filed any complaint"
language meant that FLSA-protected activity "contemplate[d] an
official grievance filed with a court or an agency."
Due to the court's refusal to address whether the FLSA
prohibits retaliation due to internally filed complaints with an
employer, federal courts interpreting retaliation complaints
under Kasten are left with
the preexisting body of law in their jurisdiction governing
whether internal complaints are protected. A New York federal
judge recently reiterated that, while many other circuits
protect such internal complaints, Second Circuit courts do not
under the FLSA. See Son v. Reina Bijoux,
Inc., 2011 U.S. Dist. LEXIS 116417 (S.D.N.Y. Oct. 7,
2011).
Within other jurisdictions, internal complaints are entitled
to protection. See, e.g.,
Johnson v. Mikolajewski & Assocs.,
2011 U.S. Dist. LEXIS 84918 (N.D. Ind. Aug. 1, 2011) (allegation
that internal complaints of unpaid overtime were the reason for
the plaintiff's termination survive summary judgment);
Palmer v. PSC Indus. Outsourcing LP,
2011 U.S. Dist. LEXIS 33613 (S.D. Tex. Mar. 30, 2011)
(internally filing a complaint to "upper management" constituted
a protected activity); Deeley v. Genesis
Healthcare Corp., 2011 U.S. Dist. LEXIS 32123 (E.D. Pa.
Mar. 25, 2011) (verbally requesting and attending a meeting to
discuss "why plaintiff's [time entry] data was altered" could
constitute protected activity).
Conclusion
This case opens employers to additional liability, as oral
complaints under the FLSA are now considered protected activity
for purposes of the FLSA. While there is no uniform rule
concerning whether internal complaints can be considered
protected activity, employers must be mindful of the controlling
standard within their jurisdiction. Employers must factor the
Kasten decision into their
decision-making going forward, particularly where adverse
employment actions (such as termination) are being considered.
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