In a 6–2 decision issued on March 22, 2011, the U.S. Supreme Court held, in Kasten v. Saint-Gobain Performance Plastics, Corporation, No. 09-834, that for purposes of the anti-retaliation provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3), the statutory phrase “filed any complaint” includes oral as well as written complaints within its scope.
The implications of this decision are far-reaching for employers with regard to complaint-and-investigation procedures.
Background
Hourly laborers at Saint-Gobain were required to wear company-issued protective clothing. However, the company placed its time clocks in a location that prevented workers from receiving credit for the time they spent donning and doffing the work-related protective gear and walking to work areas. As a result, employees worked from 20 minutes to 2.5 hours per week without pay to comply with the company’s dress requirements.
Kevin Kasten, an employee at Saint-Gobain, followed the company-mandated internal-complaint-resolution procedure by verbally complaining to his supervisors that he believed the practice was illegal. After making his complaints, he was subjected to several disciplinary reprimands. Kasten was eventually suspended for these disciplinary infractions. During this suspension, the company terminated his employment after learning that he was discussing possible class-action litigation.
Thereafter, Kasten filed a lawsuit in district court claiming that his employment was terminated in retaliation for his time-clock complaints and threats of legal action. The company moved for summary judgment arguing that oral complaints could not be “filed” as required to trigger protection from the act. The district court agreed with the company, and Kasten appealed to the Seventh Circuit Court of Appeals.
The Seventh Circuit affirmed the decision of the district court. The Seventh Circuit reasoned, “[t]he natural understanding of the phrase ‘filed any complaint’ requires the submission of some writing to an employer, court, or administrative body.” Kasten applied for rehearing, and the Seventh Circuit denied the motion. Kasten then appealed to the U.S. Supreme Court.
The Supreme Court’s Decision
The U.S. Supreme Court granted certiorari in light of the conflict among the circuit courts as to whether an oral complaint is protected under the FLSA’s anti-retaliation provision.
The Court concluded that the statutory phrase “filed any complaint” in the FLSA anti-retaliation provision includes both oral and written complaints. In coming to this conclusion, the Court looked at the language of the statute, such as the meaning of the term “filed,” and congressional intent. The Court was particularly concerned with the ability for “illiterate, less educated, and overworked workers” to file written complaints. Limiting the filing of complaints to written form would inhibit these individuals, which, as the Court pointed out, are in most need of the act’s help.
Notably, Saint-Gobain attempted to argue during oral arguments that it should prevail because Kasten complained to a private employer, not to the government; and, in its view, the anti-retaliation provision applies only to complaints filed with the government. However, the Court would not consider this position because the company failed to raise it in its response to Kasten’s petition for certiorari.
The Court vacated the Seventh Circuit’s decision and remanded the case for the lower court to decide whether Kasten will be able to satisfy the act’s notice requirement. Justices Scalia and Thomas dissented. Justice Kagan took no part in the consideration or decision of this case.
Best Practices Following Kasten
The implications of this decision are far-reaching for employers. Employers must now be even more mindful and responsive to employees’ oral complaints. Additionally, employers will also need to have record-keeping mechanisms in place to immediately document such complaints. This may require an evaluation of the employee handbook and supervisor training to assure compliance. Lastly, employers will need to ask about oral complaints during investigations.
Fortunately, the Court provided a standard for such complaints to fall within the anti-retaliation provision. According to the Court, “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.”
John A. Ybarra is a shareholder and Michael A. Wilder is an associate with Littler Mendelson, P.C. in Chicago, Illinois.
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