FLSA's Anti-Retaliation Provision Protects Oral, Not Just Written, Complaints
On March 22, 2011, in a highly anticipated decision, the Supreme Court held, in Kasten v. Saint-Gobain Performance Plastics Corp, No. 09-834, that the Fair Labor Standards Act, which establishes minimum wage, overtime pay, recordkeeping, and child labor standards, shields employees from retaliation for written as well as oral complaints regarding violations of the Act. Prior to this decision, Circuit Courts had been split over whether oral complaints constituted protected activity. While the Court’s ruling in this case paves the way for more retaliatory claims to be filed, it also provides a level of clarity to a previously unresolved area of the law. Going forward, employers, as discussed below, must be keenly aware of all forms of wage and hour complaints made by employees and review their current policies to avoid liability.
DEFINITION OF “FILING A COMPLAINT” CLARIFIED
The FLSA forbids employers “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . .” 29. U.S.C. § 215(a)(3). In Saint-Gobain, an employee alleged that he was fired because he orally complained to company officials about the company’s placement of timeclocks in a location that prevented employees from receiving credit for the time they spent putting on and taking off their work clothes, contrary to FLSA requirements. The District Court concluded that the FLSA’s anti-retaliation provision does not cover oral complaints of a violation of the Act and granted Saint-Gobain summary judgment; the Seventh Circuit affirmed.
In a 6-2 decision, Justice Breyer, writing for the majority, acknowledged that the term “filed any complaint,” when read in isolation, is subject to competing interpretations. However, the Court concluded that when the entire provision is considered in conjunction with its purpose and context, the only permissible conclusion is that “filed” is meant to be interpreted broadly so as to include oral, i.e., “any,” complaints. Although filings may normally connote writing, the Court commented that statutes, court decisions, and common usage employ the word “file” to refer to oral statements and pointed to several federal administrative agencies that allow the filing of oral complaints. Further, the Court observed that any contrary conclusion would undermine the FLSA’s basic objective of protecting workers. After setting forth its holding that oral complaints are indeed protected, the Court stated that any complaint must still be “sufficiently clear and detailed” enough for a reasonable employer to understand it.
INTERNAL COMPLAINTS VERSUS GOVERNMENT COMPLAINTS
Leaving the door slightly ajar for some confusion, the majority in Saint-Gobain declined to explicitly rule that the FLSA grants protection for complaints made to employers in addition to complaints made to the government. That issue was remanded back to the lower court on the grounds that the company failed to raise it in a timely manner. The opinion, though, suggests that the majority believes that the FLSA does protect internal complaints given the reasoning it used to define “filing” broadly - protection of employees - and because it noted that limiting the definition strictly to written complaints would discourage informal workplace grievance procedures.
Justice Scalia, author of the dissenting opinion (which was joined by Justice Thomas), wrote, on the other hand, that the FLSA does not cover complaints to employers at all, only those filed with a court or agency.
PRACTICAL CONSEQUENCES FOR EMPLOYERS
The lesson for employers to take from the Saint-Gobain ruling is apparent: if an employee makes a complaint regarding a violation of the FLSA, a careful employer will treat it as protected. The decision, moreover, underscores the importance of training managers properly, putting in place policies that appropriately handle FLSA complaints, and, generally, being in compliance with the FLSA. A safe course of action would be to internally set up a formal system to investigate and review all FLSA complaints. Additionally, an employer should determine whether any action taken by an employee is potentially protected by the FLSA before meting out related discipline.