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Washington Labor & Employment Wire » Supreme Court Holds that FLSA’s Anti-Retaliation Provision Covers Oral Complaints

Supreme Court Holds that FLSA’s Anti-Retaliation Provision Covers Oral Complaints


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On March 22, 2011, by a 6-2 vote, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics Corp. that the anti-retaliation provision for employees who file an Fair Labor Standards Act (FLSA) complaint extends to the “filing” of oral complaints. The Court did not address whether such an oral complaint must be “filed” with the government or may simply be made to the private employer because the employer failed to raise the issue until after the Court had selected the case for review.  The Court left resolution of that issue for the lower courts.

Section § 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3), forbids employers “to discharge . . . any employee because such employee has filed any complaint.” In Kasten, the employee alleged that he was terminated for oral complaints made to his employer regarding a wage and hour issue. The lower courts granted summary judgment to the employer on the basis that § 15(a)(3) did not protect oral complaints. 

Justice Breyer, writing for the majority, stated that the text alone did not conclusively indicate whether a complaint must be filed in writing. The Court then looked to the act’s “basic objectives” and found that the FLSA relied both on employee reporting and the anti-retaliation provision protecting such reporting to ensure that its objective were met. The Court acknowledged that the statute requires fair notice to employers, and that the phrase “filed any complaint” contemplated some degree of formality. However, the Court found only that “a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both the content and context, as an assertion of rights protected by the statute and a call for their protection.”

Justice Scalia, in a dissent joined by Justice Thomas, stated that the Court had the discretion to consider the question of whether FLSA covers complaints made to private employers. Justice Scalia concluded that such complaints were not sufficient to trigger the statutory protection and, thus, the Court need not consider the distinction between oral and written complaints.