SPEAK UP IF YOU WANT TO BE A PART OF THE RETALIATION MOVEMENT

Under the Fair Labor Standards Act of 1938 (FLSA), it is illegal for an employer to discharge or discriminate against an employee who “filed any complaint” concerning an alleged violation of the FLSA.  Last week, in Kasten vs. Saint-Gobain Performance Plastics Corp., No. 09-834, the United States Supreme Court once again retaliated against employers by ruling that the “filing” of a complaint does not require the making of a written or documented complaint to trigger the anti-retaliation provisions of the FLSA, but instead includes an “oral” gripe when a reasonable person would have understood the employee to put the employer on notice of a claimed FLSA violation.

In the case, Kevin Kasten brought an anti-retaliation suit against Saint-Gobain after voicing oral complaints concerning Saint-Gobain’s practice of locating certain time clocks between the area where Kasten and other employees would change work clothes and where they would actually perform their duties.  According to Kasten, the location of the time clocks prevented workers from receiving full credit for time spent changing clothes in contravention to provisions of the FLSA.

Kasten voiced his complaints to Saint-Gobain by way of Saint-Gobain’s internal grievance procedure and by also raising the issues with his shift supervisor.  Kasten contended that after raising these issues, the company illegally dismissed him.  Saint-Gobain denied that Kasten ever made any significant complaints about the time clock location and took the position that his dismissal was due to his failure to actually utilize the time clock.

The District Court where the case was first brought entered summary judgment in favor of Saint-Gobain, holding that the FLSA “did not protect oral complaints” and on appeal, the Seventh Circuit agreed.  However, consistent with their pattern over the last five years of broadening retaliation rights in the labor and employment context, the United States Supreme Court disagreed with the Seventh Circuit.

According to the Court, the phrase “filed any complaint” should not be read in a statutory vacuum.  Rather, the phrase must be read considering the statute’s purpose and in consideration of the basic objectives of the FLSA.  By including an anti-retaliation provision in the Act, the Court said, Congress did not signify an intent to limit the FLSA’s complaint procedure solely to those who could only reduce their complaints to writing, which would seemingly exclude “illiterate, less educated, or over-worked workers.”  In so deciding, the Court also noted the significance of parallel interpretations of other labor legislation, including that by the National Labor Relations Act (NLRA) and the Equal Employment Opportunity Commission (EEOC), both of which include oral as well as written complaints within the scope of their respective anti-retaliation provisions.

On the bright side, the Court did indicate that any FLSA complaint – even if oral – must be clear and detailed enough for a reasonable employer to understand it, and one thing employers can do to help them gain a solid understanding of each complaint is to have a policy that all complaints must go through a formal complaint procedure, even if first made verbally.

Employers have undoubtedly seen a rise in retaliation complaints in recent years, and this decision will only add to that burden.  But having a written policy in place to handle written complaints, consistently enforcing it, and making sure supervisors and managerial employees are trained properly in how to handle complaints will all go a long way towards making the U.S. Supreme Court’s latest decision in this arena seem slightly less retaliatory than it might otherwise.

Jim Wright concentrates his practice in the area of complex and commercial litigation, particularly in the areas of energy, labor and employment and construction law as well as other business matters. He has also represented professionals before state licensure boards. During his career, he has tried numerous cases in state and federal courts throughout West Virginia and Ohio. He has also argued cases before the United States Court of Appeals for the Sixth Circuit, the West Virginia Supreme Court of Appeals and various appellate courts in the State of Ohio. Jim is a also a recognized leader in the profession, having served as a member of the West Virginia State Bar Board of Governors and currently serving as the State Bar’s Vice President.
 
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