The following is everything you could ever possibly want to know about the Supreme Court’s recent ruling in Kasten v. Saint-Gobain Performance Plastics Corporation.
The Question
Does the Fair Labor Standards Act (FLSA) provision that prohibits retaliation against employees who “file” a complaint cover verbal complaints?
The Answer
Yes
The Facts
Kasten was employed in Saint-Gobain’s Portage, Wisconsin facility. He was repeatedly warned and then discharged for violating company time clock policies.
Kasten filed a lawsuit alleging that he was discharged in retaliation for making verbal complaints to his supervisors and HR in which he asserted that the location of the company’s time clocks prevented employees from getting full credit for time spent “donning and doffing” protective gear. Kasten never put his complaints in writing and never complained to any government agency.
The Law
The FLSA’s anti-retaliation provision forbids employers from discharging an employee “because such employee has filed any complaint” alleging a violation of the statute.
The Lower Courts
Saint-Gobain argued that to “file” a complaint under the FLSA means to put it in writing. The district court agreed and granted the company’s motion for summary judgment.
The Seventh Circuit affirmed, stating that the employee’s informal complaints did not constitute protected activity under the “plain language” of the statute.
The Supremes
The Supreme Court reversed the Seventh Circuit and remanded the case, ruling 6-2 that “filed any complaint” includes both verbal and written complaints. Justice Breyer delivered the Court’s opinion, with Justices Alito, Ginsburg, Kennedy, Roberts and Sotomayor joining. (Justice Kagan did not participate.)
The Dissent
Justice Scalia dissented, arguing that the language in the statute does not cover internal complaints made only to an employer and that an employee must complain to a government agency to be protected. Justice Thomas joined in all but one footnote of the dissent.
The Supremes’ Reasoning
The Court disagreed with the Seventh Circuit’s opinion that the answer could be found within the “plain language” of the statute. Instead, it relied heavily on previous interpretations by federal agencies that have consistently interpreted the “filed any complaint” language to include verbal complaints. It also expressed concern that protecting only written complaints would: (1) be unfair to less educated employees, (2) prevent government agencies from using verbal methods of receiving complaints (e.g., hotlines and interviews) and (3) discourage employers from using informal grievance procedures.
The Test
The Court established a “fair notice” test for determining when a verbal complaint is “filed” for purposes of the FLSA: 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.”
The Implications
This case is the third this year in which the Supreme Court has expanded employee rights. In January, the Court extended Title VII’s anti-retaliation provision to those “associated” with a complaining employee. In March, the Court confirmed the “cat’s paw” theory of liability, which makes a company potentially liable for the discriminatory motives of a supervisor even if (1) the supervisor played no role in the decision under consideration and (2) the decision-makers themselves had no discriminatory intent.
What Should You Do?
Employers should:
- take all complaints seriously whether verbal or in writing;
- train managers to forward any and all complaints to HR and/or the appropriate level of management for handling;
- require employees to document all complaints (or have HR document the complaints and require employees to sign off); and
- refrain from taking any retaliatory action against an employee who makes a complaint.
For all you legal gurus out there who would like to read the Court’s opinion in its entirety, click here. Enjoy!
