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Supreme Court Finds Verbal Wage and Hour Complaints Protected Under the FLSA

Volume 10, Issue 4
April 29, 2011

The United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. held that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) protects employees who make verbal complaints. In doing so, the Supreme Court resolved a disagreement between various federal circuit courts of appeal as to whether the FLSA's anti-reliation protections only apply to employees who file written complaints and/or participate in legal proceedings related to wage and hour issues.

The case involved Kevin Kasten, an hourly production worker for Saint-Gobain Performance Plastics Corporation at its Wisconsin-based factory, who complained to his supervisor and several human resource representatives about the location of the company's time clocks and additionally commented to another employee that he "was thinking about starting a lawsuit" to address the same. The time clocks were located in an area between the locker room and gowning areas (where employees must put on and take off certain safety gear, such as safety shoes and glasses, hair and beard covers, jump suits and ear plugs) and the employees' work stations. As a result, employees were not clocking-in until after putting on the safety gear at the start of their shift and were clocking-out before taking off the safety gear at the end of their shift. Kasten was upset over not being compensated for such time and warned that if the company's practice was challenged, it would lose in court. Thereafter, Kasten refused to record his time using the time-clocks and was terminated.

In a separate court case, a federal district court agreed with Kasten and found that the company's practice of not compensating employees for time spent putting on and taking off safety gear violated the FLSA. The current case focused on the alleged unlawful retaliation Kasten suffered based upon his verbal complaints to company officials about the time-clocks, which he claimed were the reason for his termination. The FLSA's anti-retaliation provision prohibits employers from taking adverse employment action against employees because they, among other things, have "filed any complaint" related to the FLSA. Consistent with the holdings of various other federal courts, Saint-Gobain argued that the FLSA's anti-retaliation provision only protects employees who make written complaints, not verbal ones. Other federal circuit courts, including the Ninth Circuit Court, have ruled to the contrary, finding that verbal complaints are indeed protected under the FLSA. In resolving the conflict, the Supreme Court concluded that the "filed any complaint" language of the FLSA's anti-retaliation provision does not require a complaint be in written form, so long as it is sufficiently clear and detailed for a reasonable employer to understand the complaint to be an assertion or request for the protection of rights under the FLSA.

The Supreme Court expressly declined to address the closely related issue of whether complaints made to a private employer, as opposed to the government (whether verbal or written), are sufficient to trigger the protections of the FLSA's anti-retaliation provision. Rather, it concluded that the issue was not properly addressed in the parties' legal briefs. However, since 1999, the Ninth Circuit Court has found that employee complaints made to their employers are indeed within the scope of the FLSA's anti-retaliation provision. See Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999) (holding that FLSA's anti-retaliation provision protected ticket sales agents of the Seattle SuperSonics laid off after complaining to managers about overtime pay).

The Kasten case is a clear victory for employees and serves as another management challenge for employers. As Justice Scalia noted in his dissenting opinion, the Supreme Court's new broad interpretation of the FLSA's anti-retaliation provision to include verbal complaints is likely to oftentimes leave employers in a state of uncertainty as to whether or not an employee has in fact made a complaint or is just letting off steam. Nonetheless, applying the Supreme Court's Kasten decision in connection with the Ninth Circuit Court's Lambert decision, Nevada employers must be prepared to appropriately address all types of employee wage and hour complaints, including verbal complaints made to low-level supervisors, or risk potential legal liability for FLSA retaliation claims brought by complaining employees. Accordingly, employers need to undertake additional efforts to make sure their management teams, including low-level supervisors, know how to respond to such complaints, as well as how to properly process and document employee disciplinary actions and discharges.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.