Kasten v. Saint-Gobain Performance Plastics asks a very simple question: does the word “file” in the Fair Labor Standards Act’s anti-retaliation provision only refer to written complaints, or does it also cover oral complaints? Yesterday, by a 6-2 majority, the Supreme Court concluded the latter, resolving a split among the federal appellate courts and, yet again, opening employers to more expansive liability for retaliation.
The Court spent nearly half of its analysis discussing the merits of various definitions of the word “file,” only to conclude that “the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” It instead reached its conclusion that the FLSA’s “antiretaliation provision cover[s] oral, as well as written, ‘complaint[s]’” based on policy concerns:
Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s com plaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? …
To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act’s enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving com plaints. And insofar as the antiretaliation provision covers complaints made to employers…, it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act….
The Court concluded that the method of communication of a complaint is irrelevant to whether it qualifies as protected activity. A complaint is protected, whether oral or written, if it is “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.”
This case merely brings the FLSA’s anti-retaliation provision in line with most, if not all, other statutes. Employers simply need to be aware that they take must all complaints seriously, whether communicated verbally or in writing.
The takeaway that is significant for employers, however, is just how difficult oral complaints are to handle. Oral complaints often place employers in the difficult position of having to prove a negative—that is, that the employee did not complain. To combat this problem, employers should consider establishing a protocol that all complaints must be documented, whether by the employee making the complaint or the individual receiving it. Provided that this protocol is consistently and uniformly followed, an employer will at least have the benefit of an inference that an oral complaint was not made if no written record exists.
As always, I’m happy to share the thoughts of my fellow blawgers:
- BREAKING: SCOTUS Holds that Oral Complaints Receive Retaliation Protection Under FLSA – from Philip Miles’s Lawffice Space
- Oral Complaints under FLSA are Shielded from Retaliation, Supreme Court Rules; Impact in Connecticut? – from Daniel Schwartz’s Connecticut Employment Law Blog
- When Your Employees Verbally Complain, You Better Listen! – from Stephanie Thomas’s The Proactive Employer Blog
- File this Supreme Court decision under “R” for RETALIATION – from Eric Meyer’s The Employer Handbook Blog
- Employees are protected from retaliation for making verbal complaint under the Wage and Hour Laws – from Business, Employment and Real Estate Law in Ohio
- Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11 – from LaborRelated (which includes a great cartoon illustrating the case)
- Kasten v. Saint-Gobain - Supreme Court Rules in Favor of Employees in FLSA Complaint Case – from HR Lawyer’s Blog
- SCOTUS: Oral complaints can qualify as “filed” for FLSA purposes – from Work Matters
- Employers Cannot Fire Workers Who File Oral or Written FLSA Complaints, U.S. Supreme Court Holds – from Joe’s HR and Benefits Blog
- Supreme Court Rules that Oral Complaint Can Support FLSA Retaliation Claim – from Workplace Prof Blog
- Supreme Court Rules Oral Complaints Of Wage Violations Are Protected Under FLSA – from World of Work
- USSCt: Oral Complaints Are Covered Under the Fair Labor Standard Act’s Anti-Retaliation Provision – from Alaska Employment Law
- Oral Complaint Protected From Retaliation Under FLSA – from Hawaii Labor and Employment Law
- Supreme Court Defines When an Employee Complaint is a “Complaint” – from TLNT
- Supreme Court Decides FLSA Retaliation Case based upon Oral Notice – from Alabama Employment Law Report