FLSA Anti-Retaliation Provision Covers Oral, as Well as Written, Complaints

In Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011), the U.S. Supreme Court held that the Fair Labor Standards Act’s (FLSA) anti-retaliation provision does not require the submission of a written complaint.

That provision, codified at 29 U.S.C. 215(a)(3), makes it unlawful to, inter alia, “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 this chapter.”  (Emphasis added.)

The Supreme Court vacated the Seventh Circuit’s decision (which affirmed the district court’s) that the phrase “filed any complaint” was not limited, as a matter of law, to written complaints.  (The plaintiff had orally raised an issue regarding the placement of timeclocks, which allegedly resulted in employees not receiving credit for time spent putting on and taking off their work clothes, a practice unlawful under the FLSA.)

The Court reinforced that the FLSA “requires fair notice”, and noted 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.”  Thus, “a complaint is ‘filed’ 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 FLSA.  “To 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.”  Oral, as well as written, complaints can meet this standard.

The Court did not address defendant’s argument that the FLSA’s “antiretaliation provision applies only to complaints filed with the Government” (an issue on which the lower courts ruled against defendant and which defendant did not raise in response to plaintiff’s certiorari petition) and remanded the case for determination of whether plaintiff will be able to satisfy the FLSA’s notice requirement.

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