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April 6, 2011
Fair Labor
Standards Act Anti-Retaliation Provision Applies to Oral Complaints
By: Jennifer M. Buckley and Ellen Hoeppner
The number of retaliation claims against employers has
been on the rise for the last few years. Adding to that trend,
the United States Supreme Court just made it easier for an employee
to assert a retaliation claim under the Fair Labor Standards Act.
In Kasten v. Saint-Gobain
Performance Plastics Corporation, the United States Supreme Court
held that the Fair Labor Standards Act prohibition on retaliation
against employees who "file" a complaint relating to the
Act extends to oral complaints.
In Kasten, the employee
had complained on several occasions to his supervisor and human
resources about the location of the employer's timeclocks.
He asserted that the location, which was between the area where
the employees put on and took off their work-related protective gear
and the area where they worked, prevented employees from receiving
credit for that time in violation of the Act. He was
subsequently discharged for failing to utilize the timeclock.
The employee argued that his discharge violated the Fair
Labor Standards Act anti-retaliation provision, which prohibits an
employer from discharging or in any way discriminating against an
employee who "filed any complaint" related to the Act.
29 U.S.C. § 215(a)(3). The
employer argued that the provision was inapplicable because the
employee did not "file" a complaint as he did not make a
written complaint. In fact, the employee had made no complaint
at all, oral or written, outside the company with the governmental
entity enforcing the Act. The employer argued that to construe
the provision as covering oral complaints would deprive employers of
fair notice about whether an employee is in fact making a complaint,
or just letting off steam.
While the Court agreed with the employer that some degree
of formality is required under the Act's anti-retaliation provision,
it concluded that an oral complaint could satisfy this
requirement. The Court said that a complaint is
"filed" for the purposes of the Act 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 Act." The Court noted that similar statutes have
been interpreted to include oral statements and legislators have consistently
held that similar language is meant to include oral complaints.
In addition, the Court noted that such an interpretation is
consistent with the purposes of the Act, stating:
"Why
would Congress want to limit the enforcement scheme's effectiveness
by inhibiting use of the Act's complaint procedure by those who would
find it difficult to reduce their complaints to writing, particularly
illiterate, less educated, or overworked workers? . . . To limit the
scope of the anti-retaliation provision to the filing of written
complaints would also take needed flexibility from those charged with
the Act's enforcement. It could prevent the Government from
using hotlines, interviews, and other oral methods of receiving
complaints."
The Court declined to rule on the separate issue of
whether the provision applies to complaints made internally within a
company because the employer failed to raise that issue in response
to the employee's petition for certiorari. In light of this
failure, the Court said the issue will have to be settled in the
lower courts.
Justices Scalia and Thomas dissented from the Court's
opinion, arguing that the anti-retaliation provision does not apply
to complaints made to private employers as opposed to the
governmental entity enforcing the act, thus making it unnecessary for
the Court to determine whether it applies to oral complaints.
The Court's decision attempts to legislate some
consistency between the FLSA retaliation
provision and those in other statutes, which are broader on their
face. For example, under Title VII, if an employer
discriminates against an employee for opposing a practice, filing a
charge, or assisting or participating in an investigation, a
retaliation claim can be stated. Clearly, the language in Title
VII is much broader as any act "opposing a practice" could
be considered a protected activity that triggers protection.
The Court, by its decision, seemingly expanded the retaliation
provision in the FLSA, but they did so to
address current day methods of receiving complaints via hotlines.
In light of the Court's decision as well as the trend
showing increased retaliation claims, employers should note an
employee's oral complaint or opposition-even internal ones-to an
activity that is legally protected. Employers need to consider
how to handle such complaints when they arise and consider actions
that they may take against the employee close in time to the
assertion of any such issues.
Employers in Michigan are also subject to the Michigan
Wages and Fringe Benefits Act. They should know that it
includes an anti-retaliation provision that prohibits discrimination
against those who file complaints (and a filing is to be in writing),
but also those who exercise their rights under the act
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