Supreme Court Expands the FLSA’s Antiretaliation Provision to Include Oral Complaints and Leaves Questions for Employers
On March 22, 2011 in a 6-2 decision in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09–834, the Supreme Court expanded the Federal Labor Standards Act’s (“FLSA”) anti-retaliation provision to forbid employers from discharging or discriminating against employees who assert “oral” complaints, not just written complaints.
The Petitioner, Kasten, had orally complained to company officials that the employer’s timeclock location was illegal, but never made a written complaint. Kasten alleges that he was terminated for making complaints about the locations of the timeclocks, while Saint Gobain states that it dismissed Kasten simply because Kasten, after being repeatedly warned, failed to record his comings and goings on the timeclock. For the purposes of this appeal of a summary judgment decision, the Court assumed Kasten’s allegations to be true. Justice Breyer, writing for the majority, held that the phrase “filed any complaint” included written and oral complaints and that limiting the phrase to written complaints would undermine the Act’s basic objectives and could prevent Government agencies from using hotlines, interviews and other oral methods of receiving complaints. The Court reversed a finding of summary judgment for Saint Gobain and allowed Kasten’s retaliation claim against Saint Gobain to proceed forward. Justice Scalia, joined by Justice Thomas, dissented on the ground that the FLSA’s antiretaliation provision did not cover complaints to the employer at all.
This ruling is another example of the Supreme Court’s predilection toward construing anti-retaliation provisions broadly. In Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), The Supreme Court held that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct. Just recently, in Thompson v. North American Stainless, LP, No. 09–291 (January 24, 2011), the Supreme Court held that the fiancé of an employee who filed a sex discrimination charge against an employer may bring an action for retaliation against that employer for terminating his employment three weeks after his fiancé filed the discrimination charge.
The majority in Kasten, supra, explicitly refused to address the question of whether or not complaints from an employee to the employer are covered under the anti-retaliation provision. The Court held that “a complaint is ‘filed’ when a ‘reasonable, objective person would have understood the employee’ to have ‘put the employer on notice that [the] employee is asserting statutory rights under the FLSA.'” Justice Breyer further explained that “a complaint must be sufficiently clear and detailed for a reasonable employer to understand it . . . as an assertion of rights protected by the [FLSA] and a call for their protection.” In his dissent, Justice Scalia argued that the Court in fact addressed the issue of whether complaints from employee to employer are covered under the Act, pointing out that the reasonable person standard set by the Court included intracompany complaints. Scalia explained that “filing a complaint with a judicial or administrative body is quite obviously an unambiguous assertion of one’s rights” and therefore, the reasonable person standard is only needed for intracompany complaints where a lower court must determine whether a complaint provides fair notice to the employer or is sufficiently clear and detailed so the employer understands it as an assertion of the employee’s rights under the FLSA. Regardless of the view expressed in the dissent, the issue of whether employee-to-employer complaints are covered under the FLSA is still unanswered.
How this Decision Affects Employers
Employers must be aware that they may be held liable for retaliation based on an employee’s informal oral complaint to the employer. Employers should document and investigate any and all complaints made by employees.
Employers must review their anti-discrimination/anti-retaliation policy to ensure the policies contain sufficiently broad statements prohibiting retaliation including retaliation under the FLSA. Employers must also review their internal investigation procedures to ensure that they adequately investigate each employee complaint. Employers that have not adopted an anti-discrimination/anti-retaliation policy or an internal investigation procedure are encouraged to do so.
It is absolutely essential for employers to regularly train supervisors and managers on how to deal with handle and respond to potential discrimination and retaliation complaints. Employers that are not regularly training their managers and supervisors in this regard are strongly encouraged to implement appropriate training programs.
If you have any questions about the Supreme Court’s decision in Kasten, supra, the FLSA, retaliation claims, or anti-discrimination and anti-harassment policies, please feel free to contact a member of our Labor and Employment Practice Group.