Oral Complaints Can Be Considered
Protected Activity
under the Antiretaliation Provision of the
FLSA
On March 22, 2011, the United States Supreme Court held
that the Fair Labor Standards Act's prohibition on retaliation
against employees who "file" complaints includes both oral and
written complaints. Kasten v. Saint-Gobain Performance
Plastics Corp., No. 09-834, 2011 U.S. LEXIS 2417 (U.S.
Mar. 22, 2011). To be considered protected activity, 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," according to the
Court. Although the complaint in Kasten was allegedly
made directly to the employer, the Court did not decide
whether the FLSA's antiretaliation provision protects
employees who make complaints to their employer or whether the
complaints must instead be filed with the government. That
issue, and the issue of what level of communication by an
employee will be deemed sufficient to constitute a "complaint"
under this standard, are left open to be addressed by the
lower courts. While these issues are grappled by the lower
courts, employers are advised to have appropriate processes in
place to record and promptly address employee complaints.
A Circuit Split
Kasten arose from plaintiff Kevin Kasten's claim
that he was terminated by his employer, defendant Saint-Gobain
Performance Plastics Corp., in retaliation for making an oral
complaint to his employer about the location of Saint-Gobain's
time clocks. Kasten believed the time clocks prevented
employees from receiving credit for time spent changing in and
out of work clothes. Kasten claimed that he followed
Saint-Gobain's internal grievance-resolution procedure by
raising his concerns with his shift supervisor, a human
resources employee, the human resources manager, and the
operations manager. Saint-Gobain denied that Kasten had
made a significant complaint about the time clocks, and
contended it terminated Kasten because he failed to clock in
and out after repeated warnings.
The FLSA's antiretaliation provision makes it unlawful: "to
discharge or in any other manner discriminate against any
employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under
or related to [the Act], or has testified or is about to
testify in such proceeding, or has served or is about to serve
on an industry committee…" 29 U.S.C. § 215(a)(3) (emphasis
added). Relying on this provision, Saint-Gobain moved for
judgment as a matter of law, arguing that Kasten had not
"filed any complaint." The U.S. District Court for the Western
District of Wisconsin agreed, granting the Saint-Gobain's
motion.
On appeal, the Seventh Circuit Court of Appeal affirmed,
finding that Kasten did not engage in protected activity under
the FLSA's antiretaliation provision. In contrast, other
circuit courts have found the FLSA's antiretaliation provision
covers oral complaints. In light of this split, the U.S.
Supreme Court granted certiorari in Kasten to
determine whether an oral complaint constitutes protected
activity under the FLSA.
The Majority Opinion
In a 6-2 decision, Justice Breyer delivered the opinion of
the Court. The opinion opens by examining the statutory
text in an effort to discern whether the phrase "filed any
complaint" is limited to written complaints, or encompasses
both written and oral complaints. Considering the word "filed"
in a variety of contexts, the Court concluded that the
language of the provision was open to competing
interpretations.
Finding that the statutory text failed to conclusively
answer the question as to whether oral grievances are
protected activity, the Court went on to "functional
considerations." First, the Court considered the purpose of
the FLSA, holding that a more restrictive interpretation would
undermine the Act's basic objectives. Next, the Court noted
that excluding oral complaints from the antiretaliation
provision would reduce agency flexibility in enforcing the
FLSA, such as limiting the ability of government agencies to
use hotlines and interviews to receive complaints. The Court
also pointed out that insofar as the antiretaliation provision
applies to complaints made to employers (which the Court
expressly declined to decide), excluding oral complaints would
discourage the use of informal workplace grievance
procedures.
In addition to these "functional considerations," the Court
also gave "a degree of weight" to the views of federal
administrative agencies responsible for enforcing the FLSA,
specifically the Secretary of Labor and the EEOC. Both of
these federal agencies share the view that oral complaints are
protected activity.
The Court agreed with Saint-Gobain's assertion that the
FLSA seeks to establish an enforcement system that is fair to
employers by providing them sufficient notice that an employee
is making a complaint. Accordingly, the Court held that the
phrase "'filed any complaint' contemplates some degree of
formality, certainly 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."[1] The Court thus adopted the
standard that in order for a complaint to "fall within the
scope of the antiretaliation provision, [it] 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."[2] The Court did not give
further guidance on which oral and written complaints are
protected activity, nor did it decide whether intracompany
complaints constitute protected activity.
The Dissent
Justice Scalia, largely joined by Justice Thomas, dissented
and criticized the majority's decision not to address the
issue of whether an intracompany complaint constitutes
protected activity. The dissent concluded that Kasten's suit
should fail because the FLSA's antiretaliation provision does
not cover any complaint to an employer. Rather,
the dissent contended that the term "complaint" has a
specialized meaning in the legal context, which is limited to
a formal allegation or charge to an appropriate court or
officer.
Implications for Employers
Although the majority opinion in Kasten expressly
declined to decide whether complaints to an employer (rather
than the government) are covered by the FLSA's antiretaliation
provision, the holding does make clear that oral complaints
may be protected activity. The reach of this holding –
i.e., what types of oral complaints will be deemed to
be sufficiently clear and detailed – remains unclear.
Nonetheless, given the Court's ruling, employers should take
steps to appropriately handle employee complaints and
diligently manage performance issues to document the reasons
for personnel decisions. Thus, for example, employers
should:
- Train management and human resources personnel who are
in a position to receive oral complaints from employees.
- Have appropriate processes in place to promptly record
and address employee complaints.
- Clearly communicate the employer's policy prohibiting
retaliation for raising a good-faith complaint.
- Promptly and consistently document employee performance
and personnel issues.
- Consistently provide detailed and accurate employee
performance evaluations.
Orrick’s Team
Orrick’s Global Employment Law Group
deals regularly with pay and discrimination issues. We offer
practical advice and expertise to help our clients chose the
best options for meeting their legal obligations in this
changing area of the law.
- Advising on audits.
- Reviewing employment policies and handbooks.
- Creating training materials for HR, legal and
decision-makers.
- Advising on data retention policies.
[1] 2011
U.S. LEXIS 2417, *22.
[2]
Id. at *23.
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