Employee’s Unwritten Fair Labor Standards Act Complaint Protected from Employer Retaliation

October 13, 2011 by Beeson Tayer & Bodine

The U.S. Supreme Court has decided that employees are protected from retaliation for making federal wage and hour complaints, even when the complaint is made only orally, and not in writing.

After Kevin Kasten orally complained to his employer that its timeclocks were located in a place that prevented workers from receiving credit for the time spent putting on and taking off work clothes, as required by the Fair Labor Standards Act (FLSA), his employer fired him. Kasten then sued his employer for violating the FLSA’s antiretaliation provision, which prohibits employers from discharging or otherwise discriminating against an employee who “has filed any complaint… under or related to” the Act.

The employer argued that Kasten’s oral complaint did not constitute the “filing” of a complaint required by the FLSA.

The Supreme Court in Kasten v. Saint-Gobain Performance Plastics, 131 S.Ct. 1325, last March rejected the employer’s argument, concluding oral complaints about FLSA violations are just as protected as written complaints. Justice Breyer, speaking for a six-member majority, noted that while “filings” are most often made in writing, the language “any complaint” suggested a broad interpretation be given the statute. Critically, the Court observed that limiting the antiretaliation provision to written complaints alone would disadvantage illiterate or less educated workers – those most vulnerable and in need of protection – and weaken enforcement of labor standards, which is the core purpose of the FLSA.

The Court assumed, without deciding, that employee complaints made with private employers are just as protected as complaints made with government agencies. The majority of circuit courts considering the question have found that “any complaint” includes internal complaints made to private employers.

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