U.S. Supreme Court Holds That the FLSA's Anti-Retaliation Provision Covers Oral Complaints

In a 6-2 decision in which Justice Kagan did not take part, the United States Supreme Court this week held that the FLSA's anti-retaliation provision, which forbids retaliation based on an employee who has "filed any complaint," protects oral complaints in addition to written complaints. The ruling reverses the 7^th Circuit's earlier decision in this case, Kasten v. Saint-Gobain Performance Plastics Corp., which held that the FLSA's anti-retaliation provisions do not cover oral complaints. The decision also resolves a split among several other circuit courts that had reached different conclusions as to the scope of the anti-retaliation provision.

The plaintiff in the case, Kasten, had made repeated oral complaints, in accordance with his employer's internal grievance procedure, about the location of the time clocks, which he claimed were located in an area that caused employees to be off the clock while donning and doffing work-related protective gear. His employer later dismissed Kasten for failing to record time on the time clock, prompting him to sue alleging retaliation. In reaching its decision, the Supreme Court noted that the definition of the word "filed" did not necessarily require a written document, and it concluded that the text of the statute itself did not resolve the issue. But, after examining the purposes behind the law, as well as anti-retaliation provisions in similar statutes and the Department of Labor's view on the matter, the Supreme Court concluded that oral complaints can suffice. The only requirement is that the oral complaint be sufficiently clear and detailed so that the employer receives proper notice of the complaint.

Left unresolved by the decision is the question of whether the anti-retaliation provision applies only to complaints filed with the government as opposed to those made to a private employer. Because that issue was not properly asserted to the Supreme Court, it will be left to subsequent lower courts to decide. In the meantime, private employers should be alert to all oral complaints employees make about their pay and other issues under the FLSA. Because the Supreme Court's decision does not clearly define what constitutes an oral complaint that is sufficiently clear and detailed to put an employer on notice, employers should think carefully about whether employee comments, even those seemingly made off-the-cuff, might constitute an oral complaint sufficient to invoke the protection of the FLSA's anti-retaliation provisions.