Supreme Court Rules An Oral Complaint About Time-Keeping Practices is Protected Activity and Supports Retaliation Claim

Friday, April 1, 2011

by Jackson Lewis

Continuing its support of employee retaliation claims, the U.S. Supreme Court has ruled 6-2 that an oral complaint over time-keeping practices constitutes protected activity implicating the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”), and that employee complaints need not be written to enjoy statutory protection.  Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011).  The Court remanded for determination, however, the question whether any complaint made solely to an employer – orally or in writing – falls under the FLSA’s protective mantle. Justice Elena Kagan did not participate in the case.


Petitioner Kevin Kasten alleged that his employer, Saint-Gobain Performance Plastics Corporation, terminated him because he made internal complaints to management about the company’s time-keeping practices. Without addressing any of the underlying factual issues, the district court ruled that an oral complaint is insufficient to implicate the FLSA’s anti-retaliation provision and granted the company summary judgment.  The Seventh Circuit Court of Appeals affirmed.

Oral Complaint Protected

The Supreme Court disagreed and vacated the appeals court decision.  Justice Stephen Breyer, writing for the majority, held that the FLSA protects oral complaints.  He observed that the FLSA anti-retaliation provision forbids employers from “discharg[ing] or in any other manner discriminat[ing] against any employee because such an employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the Act. 

Justice Breyer’s reasons for deeming oral complaints protected by the FLSA include the following:

  • certain dictionaries, regulations of federal agencies other than the Department of Labor (which enforces the FLSA), and state statutes indicate that a person could “file” an oral statement; 
  • the phrase, “any complaint,” used in the statute, suggests a broad interpretation for  what constitutes a complaint;
  • Franklin Roosevelt, in promoting the FLSA, said the Act was designed to protect “illiterate, less educated” workers, who might not appreciate fine statutory distinctions;
  • illiteracy studies from the early part of the 20th century support the view that the FLSA was enacted to allow such marginalized employees to make complaints that would be protected from retaliation; and
  • it is appropriate to defer to the Department of Labor, which has taken the position that “filed any complaint” encompasses oral complaints. 

Unresolved Issue

Left unresolved in the Court’s ruling is the issue of whether the FLSA’s “filed any complaint” language was meant to include complaints, oral or written, that an employee brings to his or her employer internally, without involving a governmental agency.  Justice Breyer found the question was not appropriate for review.

Justice Antonin Scalia strongly disagreed with the majority, finding that the issue internal complaint was properly raised by the company in its opposition to Kasten’s petition for high court review.  According to Justice Scalia, the Court was issuing an “advisory opinion” by addressing the oral/writing issue without addressing whether an internal complaint constituted protected activity.  On the merits he would concluded that the “filed any complaint” language meant that FLSA protected activity “contemplate[d] an official grievance filed with a court or an agency.”

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