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Does an Employee have to File a Written Complaint to be Protected by the FLSA’s Anti-Retaliation Provision?

by Martin Salcedo, Esq. - The Human Equation on 6/9/2011
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Like many employment-related laws, the Fair Labor Standards Act (FLSA), which is the federal law governing minimum wages, maximum hours, and overtime pay, includes an anti-retaliation provision. In Katsen v. Saint-Gobain Performance Plastics Corp., Case No. No. 09-834, the United States Supreme Court was called upon to decide whether the FLSA’s anti-retaliation provision protects only those employees submitting written complaints of FLSA violations in their workplace.

The FLSA’s anti-retaliation provision does not allow an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint…under or related to FLSA." The question before the Court was whether the phrase “filed any complaint,” as used in the FLSA’s anti-retaliation provision, includes oral, as well as written, complaints.

In this case, the employee, Kevin Kasten, repeatedly complained to management and human resources about the manner in which the employer’s practices violated the FLSA. In the lower courts, Mr. Katsen lost his case because his complaints were oral rather than written. In light of the conflict among the Circuit Courts of Appeal, the Supreme Court decided to hear Mr. Kasten’s case.

According to the Supreme Court, if the phrase “filed any complaint” includes oral complaints, then such a complaint would be considered protected conduct under the FLSA. Consequently, Mr. Kasten would be protected by the FLSA’s anti-retaliation provision.

At the outset, the Court concluded that phrase “filed any complaint,” standing alone, did not sufficiently clarify whether oral complaints are considered protected activity. In reaching this conclusion, the Court focused on the text of the statute and considered the following information:

  • Dictionary definitions of the word “filed” are inconsistent in that some define the term to require a written submission and others permit oral submissions.
  • Various state and federal statutes not only fail to provide a uniform definition of the word “file,” but some expressly provide that a filing may be made orally or in writing.
  • Various federal regulations similarly permit fillings to be made orally or in writing.
  • A review of contemporaneous judicial usage and interpretation of the term “file” around the same time the FLSA was enacted in 1938, shows that oral filings were a known phenomena.
  • While filings may more often be made in writing, the relevant provision of the FLSA’s anti-retaliation provision includes the phrase “filed any complaint,” thereby suggesting a broad interpretation that would include oral complaints.

Although these factors could support an argument one way or the other, the Court stated that the text, taken alone, cannot provide a conclusive answer to the interpretive question because the phrase "filed any complaint" may or may not, encompass oral complaints. Accordingly, the Court was forced to look further.

The Supreme Court, which next examined the intent behind the FLSA, noted that several functional considerations indicate that Congress intended the anti-retaliation provision to cover oral, as well as written, complaints. In reaching this conclusion, the Court considered the following information:

  • An interpretation that limited the provision's coverage to written complaints would undermine the FLSA’s basic objectives.
  • The FLSA relies on information and complaints received from employees seeking to vindicate rights claimed to have been denied for enforcement of the FLSA’s standards.
  • Since in the years prior to the passage of the FLSA, illiteracy rates were particularly high among the poor, why would Congress want to limit the FLSA’s effectiveness by inhibiting the use of a complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?
  • The Secretary of Labor has consistently held the view that the words "filed any complaint" cover oral, as well as written, complaints. According to the Court, these agency views are reasonable and consistent with the FLSA. Moreover, the length of time the agencies have held them suggests that they reflect careful consideration, not post hoc rationalization.
  • Limiting the scope of the anti-retaliation provision to written complaints would take needed flexibility from those charged with the FLSA’s enforcement, by, for example, preventing Government agencies from using hotlines, interviews, and other oral methods of receiving complaints, and it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the FLSA.

In addition to these factors supporting the conclusion that oral complaints are, in fact, sufficient to trigger the protections of the FLSA’s anti-retaliation provision, the Supreme Court noted that while the FLSA requires fair notice to employers, a fair notice requirement does not necessarily mean that notice must be in writing.

Rather, the Supreme Court held that to fall within the scope of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the FLSA and a call for their protection. Importantly, the Court held that this standard can be met by oral complaints, as well as by written ones.

As a result of the Supreme Court’s 6-2 (Justice Kagan did not participate in this case), the conflict among the Circuit Courts of Appeal has been resolved in favor of employees. Oral complaints, provided they are sufficiently clear and detailed, and they give an employer fair notice, are considered protected activity under the FLSA’s anti-retaliation provision.

This pro-employee ruling may certainly harm employers who do not recognize this fairly significant change in the FLSA’s anti-retaliation landscape. Further, given the Court’s rational, it may open the door for a similar holding under other anti-retaliation provisions.

Nevertheless, employers must be attentive to any oral complaints of FLSA violations, and employers should consider having the complaining employee reduce his or her complaint to writing. In any event, employers must be careful in how they deal with employees making oral complaints about an FLSA practice. Otherwise, an unlawful retaliation suit may not be too far off.

If you would like to learn more about the wage and hour issues under the Fair Labor Standards Act, click here.

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