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Supreme Court Holds Oral Complaints Are Protected Conduct Under the FLSA’s Anti-Retaliation Provision In a 6-2 decision, the United States Supreme Court held on March 22, 2011, that the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”) protects employees who make oral complaints of FLSA violations in Kasten v. Saint-Gobain Performance Plastics. The FLSA’s anti-retaliation provision forbids employers, in relevant part, from discharging or in any other manner discriminating against an employee because “such employee has filed any complaint.” The question before the Court was whether the phrase “filed any complaint” is limited to written complaints or should be read more broadly to extend to verbal complaints, as well.
At the outset of its analysis, the Supreme Court found that the plain language of the statute is ambiguous, as the word “file” can refer to the verbal or written submission of a complaint. The Court therefore looked at several functional considerations to determine intent of Congress in drafting the anti-retaliation provision. First, the Court found that an interpretation limiting the provision’s coverage to written complaints would undermine the FLSA’s basic objectives and standards by weakening enforcement efforts. The Court noted that enforcement of the FLSA arises more from complaints and information given by employees seeking to vindicate their rights than from federal investigations and supervision. Given that some employees may find it difficult or inadvisable to reduce a complaint to writing, the Court was concerned with extending antiretaliation protection to “illiterate, less educated, [and] overworked workers” to ensure the continued flow of information and complaints regarding wage and hour violations. The Court further noted that extending protection to verbal complaints would provide government agencies with greater flexibility in fielding and responding to complaints, by preserving the efficacy of hotlines, interviews, and other oral methods of receiving complaints. Finally, the Court noted that both the Department of Labor and the Equal Employment Opportunity Commission advocated an interpretation of the statute that extends to verbal complaints. Acknowledging concerns voiced by the defendant employer, the Supreme Court held that the FLSA requires an employer to have “fair notice” of a complaint filed by an employee, whether written or verbal. To that end, the Court requires that, “[t]o fall within the scope of the antiretaliation provision, 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 protected by the statute and a call for their protection.” Although the Supreme Court’s decision resolved the question of whether the FLSA’s antiretaliation provision extends to oral complaints, it failed to address the related question of whether this provision extends to complaints lodged with employers or is limited to complaints made to government agencies tasked with enforcing the Act. The Circuit Courts are split on this issue, and observers have been anticipating the Supreme Court’s resolution of the split. However, over Justice Scalia’s dissent, the majority found that the issue of complaints to employers was not adequately raised by the parties when they applied to be heard by the Supreme Court. Accordingly, the majority refused to resolve the issue. It is possible on remand that the lower court may find the complaint is not actionable under the FLSA’s notice requirement as plaintiff employee only complained to the employer, not the government agency. As a practical matter, the Court’s silence on this issue is frustrating for employers, as there is no clear answer as to what type of employee complaint will trigger the FLSA’s antiretaliation provision. In light of this uncertainty, employers are advised to heed any complaints raised directly to them by employees and give due consideration to employment decisions made with respect to such employees. © 2011 Kiesewetter Wise Kaplan Prather, PLC |
