Supreme Court Rules the FLSA Prohibits Retaliation Against Employees who Make Oral Complaints

March 31, 2011 By Labor and Employment Practice Group

On March 22, the U.S. Supreme Court, in Kasten v. Saint-Gobain Performance Plastics Corp., ruled that oral complaints, in addition to written complaints, about wage/hour issues are protected under the Fair Labor Standards Act’s (“FLSA”) anti-retaliation provision.  The FLSA makes it illegal “to discharge or . . . discriminate against any employee because [the employee] has filed any complaint. . .” alleging an FLSA violation.

Kasten alleged he orally complained to company representatives, under the internal complaint resolution procedure, about the location of time clocks in Saint-Gobain’s facility.  His complaints were not reduced to writing.  Saint-Gobain subsequently terminated Kasten for repeatedly violating its time clock policy.  Kasten filed a FLSA anti-retaliation lawsuit.  Saint-Gobain contended Kasten’s suit should be dismissed because oral complaints did not qualify as protected activity under the FLSA.  The lower courts ruled in the Company’s favor.  The Supreme Court disagreed.

The Kasten Court ruled that an oral complaint of an FLSA violation is protected conduct under the FLSA’s anti-retaliation provision.  The Court then addressed the kind of oral complaint that is protected.  The Court stated the phrase “filed any complaint” contemplates some degree of formality.  Therefore, “a complaint [oral or written] 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 protection.”  Unfortunately, the Court did not provide any practical guidance as to how this threshold test would be satisfied. 

The Court declined to address Saint-Gobain’s alternate argument that the FLSA’s anti-retaliation provision applies only to complaints filed with the Government, not private employers.

This decision highlights the importance of properly handling and documenting the receipt of employee complaints, both oral and written.  Employers should be responsive to employee’s oral complaints and determine how those complaints will be addressed.  Employers also should consider implementing an “internal complaint” procedure detailing how employees must make all complaints (oral and written) and how these complaints will be investigated. 

Additionally, supervisors should be trained to document and promptly report all oral complaints (of whatever nature) to Human Resources.  In light of the Supreme Court’s recent “cat’s paw” decision in Staub v. Proctor Hospital (FBT Legal Update – March 7, 2011), employers now have a  much greater interest in knowing whether an employee may have made oral complaints to his supervisor -- who now is recommending an adverse employment action against that employee.

For more information, please contact Jim Lawrence, Jeffrey Shoskin or any other member of the Labor and Employment practice group at Frost Brown Todd. 

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