Supreme Court To Determine Whether Employees Are Protected From Retaliation For Making Oral Complaints

As the new Supreme Court session gets under way, an important case for worker’s rights will be determined. In Kasten v. Saint-Gobain, the Court will examine the issue of retaliation as it relates to the Fair Labor Standards Act (“FLSA”).

The FLSA covers a number of different areas, including minimum wage, overtime and child labor laws. Under current law, written complaints against employers for violations of the FLSA are protected from retaliation. This means that an employer may not take any adverse employment actions against employees engaged in protected activities. Specifically, the FLSA provides:

“[I]t shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.”

In Kasten v. Saint-Gobain, the employee – Kevin Kasten – verbally complained to his supervisor from October 2006 through December 2006 about the location of the time clocks and that their placement prevented employees from being paid for time spent donning and doffing their required protective gear. He also told a supervisor that he planned to bring a lawsuit based on the location of the clocks.

In December 2006, Kasten was terminated on the grounds that he had violated the company’s policy regarding clock punching. He then filed suit under the FLSA alleging that his termination had been in retaliation for his verbal complaints.

The Seventh Circuit Court of Appeals upheld the District Court’s determination that Kasten had not “filed” a complaint, an action requiring the submission of some form of writing. As a result, the protected activity necessary to give rise to a cause of action for retaliation did not exist.

The Supreme Court granted certiorari in March and will hear argument this term.

Kasten asserts that the term “filed” as used in the FLSA includes oral complaints, and that allowing verbal complaints is in furtherance of the FLSA’s statutory intent. Further, as the dissent points out, not only is the 7th Circuit is in disagreement with other circuits on this issue, but that the determination of whether a written or verbal complaint is necessary has such a “broad impact on a variety of anti-retaliation provisions, which ‘serve to protect not just the individual worker, but the means by which federal agencies become aware of unlawful labor practices’ that further consideration of this topic was necessary.”

It is important to note though – violations of the FLSA are strictly prohibited. If your employer violates the FLSA you may be able to file a claim. The question here is whether retaliation based on oral complaints of violations constitutes an additional cause of action.

As Atlanta employment lawyers, we recognize the impact this decision may have for workers throughout Georgia. We will be watching this case closely and reporting as developments occur. If you believe you have been subject to an FLSA violation, or subject to an adverse employment action as the result of complaining about an FLSA violation, please contact Buckley Bala Wilson Mew LLP, dedicated to protecting employee’s rights.