Supreme Court Weighs FLSA Protection for Oral Complaints

The Supreme Court of the United States on Wednesday heard oral argument in a case that should help determine the scope of the Fair Labor Standards Act's (FLSA) anti-retaliation provision.

In Kasten v. Saint-Gobain Performance Plastics, the plaintiff employee sued his former employer, alleging that it terminated him in retaliation for verbal complaints that he lodged with the company regarding the location of its time clocks. Specifically, the employee alleged that he told his supervisors that the location of the clocks prevented employees from being paid for time spent donning and doffing required protective gear.

FLSA provides:

[I]t shall be unlawful for any person . . . 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 this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

29 U.S.C. § 215(a)(3).

The district court granted the defendant's summary judgment motion, finding that Kasten had not engaged in protected activity because he had not “filed any complaint” about the allegedly illegal location of the time clocks.

Kasten v. Saint-Gobain Performance Plastics Corp. (7th Cir. 2009) Slip op. at 4. Kasten appealed, and the Seventh Circuit affirmed. It held:

1. FLSA protects internal, intra-company complaints. "As Kasten points out, the statute does not limit the types of complaints which will suffice, and in fact modifies the word 'complaint' with the word 'any.' Thus, the language of the statute would seem to include internal, intra-company complaints as protected activity." Slip op. at 6-7.
2. However, FLSA only protects complaints that are "filed" and does not protect verbal complaints. "Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity. The use of the verb 'to file' connotes the use of a writing." Slip op. at 9.

The Supreme Court granted the employee's petition for certiorari and heard oral argument on Wednesday. A decision is due by the end of the Court's term in June.

The Supreme Court's docket is here. The transcript of oral argument is available here.