FLSA Includes Oral Complaints in Retaliation Protections

March 15th, 2011 | By Jules Halpern Associates | FLSA, Human Resources, Retaliation, United States Supreme Court

The federal Fair Labor Standards Act (FLSA) contains an anti-retaliation provision that forbids employers “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 [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.” 29 U.S.C. § 215(a)(3) (emphasis added).

On March 22, 2010, in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, the U.S. Supreme Court answered the question of whether the phrase “filed any complaint” in the FLSA’s anti-retaliation provision includes oral as well as written complaints within its scope.

According to his former employer, Saint-Gobain Performance Plastics Corp., Kevin Kasten was fired from his job after repeatedly failing to record his comings and goings on the employer’s time clock, per company policy. However, Kasten alleged that he was actually fired in retaliation for complaining to company officials that the location of the company’s time clocks prevented employees from being properly paid for the time they spent putting on and taking off (i.e., “doffing and donning”) their work-related protective gear. In response, Saint-Gobain argued that the FLSA’s anti-retaliation provision only protected employees who filed written complaints.

In finding that a narrow interpretation of the phrase “filed any complaint” would undermine the basic objectives Congress intended when enacting the FLSA, the Supreme Court held that the language “filed any complaint” includes oral complaints.

This decision reiterates why employers need to closely monitor employee complaints of employment law noncompliance. One of the first steps employers should take after receiving such a complaint, whether oral or written, is to reiterate to both the complaining employee and management the company’s (hopefully well-documented) policy against retaliation. On an interesting side note, the Supreme Court left open the rather large issue of whether oral or written complaints must be filed with a governmental agency in order to invoke the FLSA’s anti-retaliation protection, or whether an internal complaint, like the very one at issue in Kasten, could constitute protected retaliation. Stay tuned…

Jules Halpern Associates LLC

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