by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Kasten v. Saint-Gobain Performance Plastics. The retaliation provision in the FLSA [from FLSA, 29 U.S.C. § 215(a)(3)] makes it unlawful for an employer covered by the FLSA to:

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 this chapter, or has testified or is about to testify in any such proceeding.

The key term in this provision is the word “filed.” More specifically, does the word “filed” apply to internal (or intra company) complaints made orally to supervisors and/or other high-level representatives of the employer, or must the complaint be in writing?

In this case, Kevin Kasten refused on four occasions to swipe in and out on a time clock because the location of the clock prevented employees from being paid for time spent donning and doffing protective gear. He made oral complaints to his supervisor and to HR representative. Kasten, who was later terminated, claimed his termination was retaliation for numerous verbal complaints he made regarding the location of the clock. The company argued that he was terminated for failing to time in and out after several warnings, and that no formal complaints were made. The district court rendered summary judgment for the company, and the 7th Circuit affirmed on grounds that internal complaints that are “purely verbal” are not protected by the FLSA (see 507 F.3d 834).

The Supreme Court heard oral arguments on October 14, 2010. A summary of the oral arguments may be viewed at the website. The oral arguments in there entirety may be heard here.

Key excerpts from the oral arguments are as follows:

Justice Alito: posed the scenario of a machine breaking down on the factory floor and a worker who, upon seeing a supervisor walking by, taps the supervisor on the shoulder and says the broken machine needs to be fixed or there is a violation of the statute. "Is that enough" to constitute a filed complaint, he asked.

Justice Sotomayor: wondered about the employee who is at a cocktail party, sees a supervisor and complains of a wage-and-hour violation.

Assistant to Solicitor General Wall: there are 20 or more federal statutes with similar anti-retaliation provisions that cover oral complaints. He said the practical problems suggested by the justices have not materialized under those laws.

Justice Breyer: pressed Wall for a rule or standard that provides some formality to oral complaints in order to avoid the cocktail party scenario. "Whether the employee has put the employer on notice that he is asserting rights to something that he is entitled to," responded Wall. "Here there is no question that [Kasten] asserted his statutory rights. He went to his supervisor and went up the ladder to complain. He said he was thinking about suing because workers were not getting overtime pay."

Attorney Phillips for Defendant: said the justices' questions proved that his opponents were arguing for an "inherently unworkable standard." Phillips said the law's anti-retaliation provision covered only written complaints, and written complaints filed only with the government, not within the company. "This statute was not intended for the protection of the employee or employer," he argued. "It was intended to get information to the government. It's a very narrow approach."

Justice Ginsburg: told Phillips that she thought the act protected workers. In 1938, when the law was enacted, she noted, many workers were poor, illiterate or did not speak English. "Wouldn't Congress have meant to protect them?"

Attorney Phillips Responded: The retaliation provision was enacted later, noted Phillips, adding, "Here we're talking about a Congress that made a very different judgment. When [the statute] talks about filing a complaint, about initiating or instituting a procedure, what they have in mind is an official government agency."

Attorney Kaster for Plaintiff: said other statutes, such as the Migrant Workers Act, have identical language to the FLSA and cover oral complaints. "It's implausible to think migrant workers would leave the field to file written complaints with a government agency," he said. "Migrant workers, coal miners, factory workers -- they don't write memos. This has to have a broad interpretation. Employees are the engine that drive this act."

What does it all mean?

There are major differences in wording in the FLSA versus other statutes. For example, Title VII has a participation clause (i.e., filing a formal complaint with the EEOC) and an opposition clause (opposing an employer action by complaining to supervisors or HR representatives). The record in this case reveals that Kasten satisfied the opposition clause as written in Title VII. The problem is that the FLSA does not have an opposition clause. My own feeling is that Kasten may have a winning hand given prior Supreme Court rulings relating to statutes in which retaliation claims were upheld despite absence of controlling language, including Section 1981 (CBOCS West v. Humphries, 2008), Section1982 (Sullivan v. Little Hunting Park, 1969), Title IX (Jackson v. Birmingham Bd. of Ed., 2005), and the ADEA (Gomez-Perez v. Potter, 2008).

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