The U.S. Supreme Court Grapples With Whether Internal Oral Complaints Are Protected Activity Under The FLSA's Anti-Retaliation Provision

U.S. Supreme CourtThe Fair Labor Standards Act (FLSA) provides that it is unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint ... under or related to this Act." 29 U.S.C. § 215(a)(3). The question before the U.S. Supreme Court today in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir.), reh’g denied, 585 F.3d 310 (7th Cir. 2009), cert. granted, 130 S.Ct. 1890 (2010), was whether “filed any complaint” includes making an internal oral complaint.

Kevin Kasten worked at a Saint-Gobain manufacturing plant in Wisconsin. He was issued three warnings for failing to properly clock in and out, and was suspended and then terminated in connection with a fourth incident. He claimed that at the time of his warnings and suspension, he told his supervisors and a Human Resources Generalist that the location of the time clocks was illegal because it prevented employees from being paid for time spent donning and doffing their required protective gear, and suggested to one supervisor that he might file a lawsuit. Following his termination, he sued Saint-Gobain, claiming that his employment was terminated in retaliation for his complaints in violation of the FLSA.

The Western District of Wisconsin dismissed the case, holding that unwritten oral complaints are not protected activity under the FLSA’s anti-retaliation provision. The Seventh Circuit Court of Appeals affirmed. The Seventh Circuit first held that “the plain language of the statute indicates that internal, intra-company complaints are protected,” based on the use of the word “any” before “complaint,” joining the majority of Circuit Courts that have considered the issue. 570 F.3d at 838.1 However, the court then reasoned that the use of the term “filed” implies a writing and held that unwritten oral internal complaints are not protected activity under the FLSA. 570 F.3d at 839. The court rejected the argument made by Kasten and the Secretary of Labor in an amicus brief that “filed” should be interpreted as “to submit.” Id. The court also reasoned that when Congress wants to protect retaliation more broadly, it knows how to do so, for example in Title VII, which prohibits retaliation because one has “opposed any practice.” 570 F.3d at 840. The court thus affirmed the dismissal of the Complaint.

The Supreme Court granted review to address the Circuit split on the interpretation of “filed any complaint.” At oral argument today the Court did not allow much in the way of argument, peppering the attorneys with hypotheticals, and hinting at several possible outcomes:

  • Several Justices raised the possibility that the Court could hold that internal complaints are not protected at all, siding with the minority of Circuit Courts on that issue.
  • If internal complaints can constitute protected activity, Justice Ginsburg credited the argument that every other time the word “file” is used in the FLSA, it refers to a writing and allowing oral internal complaints would deviate from the standard meaning of the term in the statute at issue. This would be a reason to affirm the Seventh Circuit’s decision, holding that only written internal complaints are protected.
  • If internal oral complaints can constitute protected activity, the Justices asked the parties to identify a standard to qualify an oral complaint as protected activity. They used the example of an oral complaint to a supervisor at a cocktail party and seemed uncomfortable with the possibility that this could be protected activity. Justices Alito and Sotomayor probed whether “filed any complaint” may incorporate whatever complaint procedures the company has. Alternatively, Justice Breyer focused on the extent of the formality of the complaint, expressing a concern that a tap on the shoulder raising a complaint could go unnoticed by a supervisor. In response, an objective standard was proposed: “whether a reasonable person would have understood the employee to have submitted a complaint.”

In sum, it appears that if the Court allows internal oral complaints to qualify as protected activity, it is likely to impose a standard that ensures that employers have sufficient notice of the complaint. Stay tuned!

This entry was written by Martha Keon.

1 But see Ball v. Memphis Bar-B-Q, Co., Inc., 28 F.3d 360, 364 (4th Cir. 2000) (the FLSA’s “statutory language clearly places limits on the range of retaliation proscribed by the act.”); Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993) (The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor”).

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