When Is A Complaint A Complaint? After 'Kasten' And Beyond

Employees, like a lot of people, complain. Work may be too hard, it may be too easy, and for many people work may never be quite right. As they say, the grass is always greener on the other side. But when does a passing negative comment, a momentary grumble, or perhaps a "sotto voce" sarcastic joke become a "complaint" that can form the basis of an anti-retaliation claim under the Fair Labor Standards Act ("FLSA")? With the deluge of wage and hour class actions continuing unabated, the issue should be of more than just academic concern for employers.

In March 2011, in Kasten v. Saint-Gobain Performance Plastics Corporation, the U.S. Supreme Court confirmed the broadening of the term "complaint" under the FLSA to encompass oral complaints by employees, thus setting a potentially very low bar for employee anti-retaliation claims.1 While the Court answered how a complaint could be made, the Court did not answer to whom the employee must make the complaint. Over two years later, courts continue to delve into detailed factual analyses to determine what makes a statement a "complaint". As a result, employers continue to struggle with this question in managing their workforce, training their managers and assessing their responses to statements by employees that may or may not be sufficient to be a complaint for purposes of the FLSA.

Summary of Kasten and the Issues Presented2

Kevin Kasten sued his employer, Saint-Gobain, for retaliation after his employment was terminated. According to Saint-Gobain, Kasten's employment was terminated for failing to record his start and end times on the timeclock after repeated warnings. According to Kasten, his employment was terminated after he orally complained to Saint-Gobain officials about the location of the timeclocks, which prevented the employees from receiving credit for time spent putting on and taking off their work clothes.

The anti-retaliation provision of the FLSA provides that it is unlawful to discharge or 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."3 The Kasten case raised two questions: (1) whether complaints may be filed with the employer, as opposed to a government entity, to be protected under the FLSA; and (2) whether oral, compared to written, complaints were protected under the FLSA since a complaint must be filed.

The Court declined to answer the first question regarding whether an employee must make the complaint to a government entity or whether a complaint to the employer would suffice.4 For the second question, the Court confirmed that the phrase "filed any complaint" included oral complaints.5

Open Question After Kasten

While the Court did not address whether an employee intra-company complaint was sufficient to invoke the anti-retaliation provision of the FLSA or whether an employee must complain to a government entity, the Court's...