On March 22, 2011 the United States Supreme Court held that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect employees from retaliation for oral complaints, as well as written ones. However, the Supreme Court declined to say whether the anti-retaliation provisions apply when the complaint (oral or written) is made only to a private employer (rather than made to the government). See Kasten v. Saint-Gobain Performance Plastics Corp. (Case No. 09-834; March 22, 2011).

The Underlying Facts
Saint-Gobain Performance Plastics Corp. hired Kevin Kasten in 2003. During his employment, Kasten made numerous oral complaints to the company about the location of a time clock, which he believed prevented employees from being paid for donning and doffing protective gear and for walking to work areas. The persons to whom Kasten orally complained included his supervisor, the human resources manager and the operations manager. In 2006 the company terminated Kasten on the grounds that despite being repeatedly warned he failed to record his comings and goings on the timeclock.

Kasten sued Saint-Gobain, claiming that his termination violated the FLSA’s anti-retaliation provision [29 USC §215(a)(3)], which protects any employee who has “filed any complaint” from adverse action because of that complaint. The District Court entered summary judgment for the company because it concluded that the FLSA does not protect oral complaints. After the Seventh Circuit affirmed, Kasten petitioned for review by the United States Supreme Court.

The US Supreme Court Decision
Following the position taken by the United States Department of Labor, the Court found that the statutory language protected oral, as well as written, complaints. According to the Court, to fall within the scope of the FLSA’s anti-retaliation provision, an oral or written complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

Because of procedural issues in the litigation, the Court did not address Saint-Gobain’s contention that Kasten’s complaints are not FLSA-protected because Kasten made them to a private employer only, and not to the Government. The lower courts in the litigation were unanimous in holding that internal complaints were protected. However, the Court believed it did not need to address this issue in order to resolve “the oral/written question that [it] granted certiorari to decide” and, therefore, “state[d] no view on the merits of Saint-Gobain’s” contention.

Practical Thoughts for Employers
The Court’s Kasten decision is another in a line of cases expanding the reach of statutory anti-retaliation provisions. Employers should continue to train supervisors and managers to recognize protected complaints so that they may avoid basing adverse employment actions on protected complaints (and thereby avoid creating liability for the employer).

Bullard Law will continue to track this issue and report on new developments. Please feel free to contact us with any questions about this decision or any other labor, employment and benefits issues.