Supreme Court Expands Retaliation Protection for Wage Complaints


By Mary Anne Ackourey
In Kasten vs. Saint-Gobain Performance Plastics Corp., the United States Supreme Court has prohibited employer retaliation against employees who make oral complaints of violations of the Fair Labor Standards Act (FLSA).  The FLSA sets employment rules concerning minimum wages, maximum hours, and overtime pay and includes an anti-retaliation provision that protects employees who file complaints related to the Act.  Prior to last week’s decision, there had been a split among federal circuit courts concerning whether a complaint had to be in writing in order to invoke the Act’s protection or if such a complaint merely could be oral.  The Eleventh Circuit, for example, had held that unofficial oral complaints by employees to their employer could constitute protected activity.  In the Seventh Circuit, where last week’s case originated, the law had been that a purely verbal complaint was not “protected activity.”

In a previous suit, former Saint-Gobain employee Kevin Kasten had alleged that the company located timelocks in such a way as to prevent employees from receiving credit for time they spent putting-on and taking-off their work clothes, contrary to the FLSA’s requirements.  Kasten prevailed in that suit.  In Kasten v. Saint-Gobain Performance Plastics Corp., Kasten claimed that Saint-Gobain had unlawfully retaliated against him because he had orally complained to company officials about the timelocks.
According to Kasten, he had repeatedly called the unlawful timelock locations to the company’s attention.  Kasten orally notified his shift supervisor, a human resources employee, Kasten’s lead operator, and the human resources manager of the illegality of the timelock locations.  These complaints, he alleged, led the company to discipline Kasten and, ultimately, to terminate his employment.
In deciding the case, the Supreme Court looked at only one question: whether an oral complaint of an FLSA violation is protected conduct under the Act’s anti-retaliation provision.  The Court concluded that an oral complaint is protected.
Looking at the text of the FLSA, the Court considered the phrase “filed any complaint” to be central to the case’s outcome.  To reach a conclusion, the Court looked at the various ways that the word “file” can be defined.  Justice Breyer, writing for the Court, points out that dictionary meanings alone do not necessarily limit the scope of the statutory phrasing to written complaints.  The opinion goes on to note that legislators, administrators, and judges have all sometimes used the word “file” in conjunction with oral statements.
But, how is an employer to know if an employee is in fact filing a complaint about an FLSA violation or, as the Court puts it, letting off steam?  The Court recognized that that the FLSA does require fair notice to employers, but went on to hold that the fair notice requirement does not necessarily mean that notice must be in writing.  A complaint is, therefore, filed when a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.  In other words, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it as an assertion of protected rights and a call for protection.  Oral complaints, the Court held, meet this standard as well as written complaints.
The Court declined to answer one question: should Saint-Gobain have prevailed because Kasten complained to a private employer and not to the Government?  For procedural reasons, the Supreme Court declined to answer the question. However, the Seventh Circuit Court of Appeals held that the plain language of the statute includes internal complaints as protected activity.  The First, Fourth, Fifth, Sixth, Tenth, and Eleventh Circuits also support of this conclusion.
The Kasten decision continues a clear trend by the Supreme Court to expand the contours of anti-retaliation protection under federal laws. These decisions point out the need for employers to broaden their complaint procedures to include not just “sexual harassment” or “discrimination,” but to include all conduct which the employee considers to be inappropriate, unethical or unlawful. Employer handbooks also should include the “safe harbor” provisions for inadvertent FLSA errors to minimize damages. The complaint procedure should make clear that such complaints by employees should be directed to Human Resources or the General Counsel of the employer and not to line managers. This minimizes the likelihood that the employee’s “complaint” will be ignored by a supervisor who viewed it merely as blowing off steam.   The complaint procedure also should provide for an orderly process for a reasoned determination. By providing a fair and procedurally adequate complaint procedure, an employer minimizes the possibility that an employee can later claim that the employer ignored his “complaint” when he files the inevitable retaliation claim when the employment relationship sours.
For more information, contact Mary Anne Ackourey at 770.818.1407 or [email protected] of the Labor & Employment Law Practice Group.