You should complain in writing. But if you don’t complain in writing, you should complain a lot.

Kevin Kasten v. Saint-Gobain Performance Plastics Corporation, 563 U.S. ___ (2011). Kevin Kasten is a former employee of the defendant, Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”). While Kasten was working at Saint-Gobain, he was required to put on and remove his work-related protective gear when he was off the clock, a practice which is plainly contrary to the the Fair Labor Standards Act of 1938 (FLSA). Kasten orally complained to Saint-Gobain officials about having to work before clocking in. After he complained, Saint-Gobain terminated him.  Kasten’s lawsuit was based on his claim that Saint-Gobain terminated him in retaliation for making his complaint about earned but unpaid wages.

The question presented to the United States Supreme Court was whether an oral complaint satisfied the anti-retaliation provision of the Fair Labor Standards Act of 1938 (FLSA), which protects employees who have, in the words of the statute, “filed any complaint.” The high court decided that an oral complaint was sufficient to trigger protection against retaliation under the FLSA, so long as it put the employer on sufficient notice.

In Kasten’s case, Kasten had pointed to several instances in which he verbally complained. He complained to his shift supervisor, a Human Resources employee, his lead operator, the human resources manager and the operations manager. Saint-Gobain responded to these factual allegations by stating that Kasten did not make any significant complaint, and that it dismissed him not because he complained, but instead because he failed to accurately record his time.

The District Court granted Saint-Gobain’s Motion for Summary Judgment on the ground that the FLSA did not protect oral complaints. The Seventh Circuit Court of Appeals agreed, and Kasten appealed his case to the United States Supreme Court. Noting that a split between the circuits existed as to whether oral complaints satisfied the requirements of the FLSA’s anti-retaliation provision, the Supreme Court granted the appeal.

The sole issue for the court to decide was whether an oral complaint was “filed” within the meaning of the FLSA.  To get to its decision, the court avoided the definition of the word “filed” as being unhelpful, but considered the purpose and context of the FLSA itself.

The court cited several reasons why Congress must have intended the FLSA’s anti-retaliation provision to cover oral, as well as written, complaints. First, the court reasoned that limiting complaints to written ones would undermine the FLSA’s objective of protecting the rights of workers by making complaints more cumbersome. Second, the court noted that at the time the FLSA was passed, illiteracy was a major concern and illiterate workers would find it very difficult to file a written complaint. Third, limiting the scope of the FLSA’s anti-retaliation provision to written complaints would make it more difficult to enforce the FLSA, because it would eliminate the use of hotlines or interviews. Finally, requiring written complaints would also require more formalized grievance procedures in workplaces, rather than desirable informal ones.

The court also looked at administrative agencies’ views about what constitutes filing a complaint, noting that the Secretary of Labor and the EEOC have consistently held the view that “complaints” may be oral or written.

Saint-Gobain argued that part of the purpose of requiring that an employee have “filed any complaint” is to put the employer on notice of a complaint, and that allowing for oral complaints would not give the employer sufficient notice. The court agreed with this contention, and stated that “filed any complaint” suggested a serious occurrence that should put the employer on notice. However, the court stated that, to be sufficiently formal, a complaint under the FLSA need not be in writing. The court agreed with Kasten that a complaint is deemed “filed” when a reasonable, objective person would understand that the employee was putting the employer on notice that he or she was asserting his or her rights under the FLSA.

Thus, the Supreme Court held that employees may verbally file a complaint regarding FLSA concerns, and will be protected from retaliation, if the oral complaint is sufficient to put the employer on notice.  The court vacated the decision of the Seventh Circuit Court of Appeals and sent the case back to the District Court for reconsideration in light of this decision.

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