On March 22, 2011, the United States Supreme Court issued its long-awaited opinion in Kasten v. Saint-Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (Mar. 22, 2011), holding that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (“FLSA”).
The Court’s decision has potentially significant implications beyond the FLSA, as several other federal statutes—including the Occupational Safety and Health Act (“OSHA”), the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act—include similar language in their anti-retaliation provisions.
Of particular importance to employers, the holding reaffirms a best practice for employee complaints: Pay attention to all employee complaints, regardless whether they are oral or written.
Kasten, a former employee in Saint-Gobain’s Portage, Wisconsin facility, received repeated warnings, and ultimately was terminated, for violating company policy requiring hourly employees to clock in and out of work. See Kasten v. St. Gobain Performance Plastics Corp., 570 F.3d 834, 836 (7th Cir. 2009). Following his termination, Kasten filed a lawsuit alleging that he was discharged in retaliation for making oral complaints to his supervisors and human resources personnel that the location of the company’s time clocks prevented employees from recording their time spent “donning and doffing” protective gear. See id. at 835-36.
In granting summary judgment to Saint-Gobain, the District Court determined that while intra-company complaints (i.e., complaints not formally filed with any judicial or administrative body) could constitute protected activity within the meaning of the FLSA, oral objections were not protected. See id. at 837. The Seventh Circuit affirmed.
Concluding that the phrase “filed any complaint” in the FLSA’s statutory text can include both oral and written complaints, the Court reversed the Seventh Circuit and remanded the case. The Court first undertook a textual analysis but, finding the statutory text insufficiently definite, ultimately relied on an examination of congressional intent and the Department of Labor’s and the Equal Employment Opportunity Commission’s interpretation of the phrase. The Court focused heavily on the fact that, at the time Congress passed the FLSA, a relatively high number of American workers were illiterate, and thus an interpretation of the phrase “filed any complaint” to include oral complaints furthered the Act’s stated purpose of protecting workers. The Court also noted that the agencies tasked with enforcing the FLSA have consistently interpreted “filed any complaint” to include oral complaints.
Notably, the Court declined to address the issue of whether complaints made to private employers, rather than government agencies, are protected under the FLSA’s anti-retaliation provision. This is striking because the complaints at issue in Kasten were, in fact, made only to a private employer (as any oral complaint likely would be). But, because the Court found that Saint-Gobain failed to raise the issue in its response to Kasten’s petition for certiorari, the Court declined to address it. There is currently a circuit split on this issue, and it may make its way to the Supreme Court in the future.
The main takeaway for employers is to be mindful of and responsive to employees’ oral complaints and to carefully consider how to handle such complaints when they arise. In discipline and discharge investigations, for example, make sure to ask supervisors about oral complaints in addition to written ones. Also consider whether to establish or enhance specific mechanisms by which employees can bring concerns to your attention, as well as record-keeping practices for documenting such complaints, so that decision makers do not act with incomplete information. Given the Court’s recent decision in Staub v. Proctor Hospital, __U.S.__, No. 09-400 ( Mar. 1, 2011), expanding the “cat’s paw” doctrine in employment litigation, HR personnel and upper managers now have greater interests in knowing whether employees may have made oral complaints about their employment.
Additionally, the Court endorsed a test under which a complaint is “filed,” for FLSA purposes, when a reasonable and objective person would have “fair notice” that the employee is asserting statutory rights. The Court noted that a “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” under the FLSA, but provided no practical guidance as to the circumstances under which that threshold may be met. Accordingly, employers should consider whether to provide supervisors with additional training regarding the FLSA, and other relevant statutes, to ensure as much as possible that complaints are appropriately forwarded to HR personnel or upper management.
Finally, as mentioned above, the Court’s holding may have implications beyond the FLSA. Several other federal statutes – including OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act – include similar language in their anti-retaliation provisions. The conservative approach will be for employers to construe any statutory language requiring a “filed” complaint to include both oral and written complaints.