The Supreme Court Holds That Oral Complaints Suffice Under The FLSA's Anti-Retaliation Provision

On March 22, 2011, the United States Supreme Court issued a decision in Kasten v. Saint-Gobain Performance Plastics Corp. interpreting the phrase "filed any complaint" in the anti-retaliation provision of the Fair Labor Standards Act (FLSA) as including oral, as well as written, complaints. Leading up to the Court's decision, the scope of the FLSA's anti-retaliation provision had been vigorously disputed in the federal courts. The section of the FLSA at issue provides that an employer may not:

discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.1

Interpretation of the phrase "filed any complaint" had generated circuit splits on two issues:

First, does "filed any complaint" protect only complaints to the government or does it also include internal complaints to the employer? The majority view held by eight federal courts of appeals is that internal complaints to an employer are protected, while the minority view held by two appellate courts is that only complaints to the government are protected.2

Second, does "filed any complaint" mean that the complaint has to be in writing, or are oral complaints also protected? Three appellate courts had held that unwritten, oral complaints are not protected, while five appellate courts had protected oral complaints.

In light of the circuit splits, the U.S. Supreme Court granted review of the Seventh Circuit's decision in Kasten.

The Underlying Case

The Kasten case involved an oral complaint to an employer, thus implicating both of these disputed legal issues. The plaintiff worked at a Saint-Gobain manufacturing plant in Wisconsin. He claimed that, at the time of his warnings and suspension for failing to properly clock in and out, he had 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. The plaintiff also said that he might file a lawsuit. Following his termination, he sued Saint-Gobain, claiming that his employment was terminated in violation of the FLSA in retaliation for his complaints. The Western District of Wisconsin dismissed the plaintiff's case, holding that oral...