The United States Supreme Court’s recent decision in Kasten v. Saint-Gobain Performance Plastics, Corp. makes clear that an employee need not make a written complaint, but can make an oral complaint, in order to be protected against retaliation for filing a complaint regarding violations of the Fair Labor Standards Act (FLSA). However, did the Supreme Court answer the question,
to whom does the oral complaint have to be made in order to be protected?
Kevin Kasten worked at Saint-Gobain’s factory where employees were required to enter a changing room to put on protective gear before they could proceed to the next room where they could clock-in. Kasten verbally complained to his supervisors and human resources that it was illegal for the time clocks to be where they were located because it precluded the workers from being compensated for their time spent donning their protective gear and if challenged in court, the company would “lose.” The company later disciplined and then terminated Kasten which he alleged was in retaliation for his verbal complaints.
Kasten brought an action against Saint-Gobain and the federal district court found that the company violated FLSA by placing time clocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear. Kasten also brought a claim for retaliation in violation of the FLSA. Both the district court and the Seventh Circuit Court of Appeals found that the FLSA did not protect verbal complaints.
The FLSA’s anti-retaliation provision forbids employers from discharging or otherwise discriminating “against any employee because such employee has filed any complaint.” The Supreme Court reversed the lower courts, finding that FLSA was intended to protect the “filing” of oral complaints, just as much as written ones.
The Supreme Court further stated that the phrase, “filed any complaint” “contemplates some degree of formality to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.”
Curiously, though the Court said it did not need to decide whether an oral complaint is protected if it is made only to the employer, rather than to a governmental agency, stating the issue had not been raised in Saint-Gobain’s briefing and was not otherwise a necessary predicate to determining the verbal versus written debate.
In the dissent, Justice Scalia noted that the Court’s majority opinion necessarily implies that the complaint, whether written or oral, may be to the employer, rather than a regulatory governmental agency. “Surely the word ‘complaint’ in this question must be assigned an implied addressee. It presumably does not include a complaint to Judge Judy. And the only plausible addressee, given the facts of this case, is the employer.”
Nevertheless, this decision did not make an express finding whether complaints to an employer, rather than to a regulatory governmental agency, are protected against retaliation under the FLSA.