CLIENT UPDATE

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March 25, 2011

Supreme Court Holds That Oral Complaints
May Trigger Anti-Retaliation Provision of FLSA

In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011), the Supreme Court of the United States considered whether an oral complaint may trigger the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”).  The Court held that a complaint need not be in writing to trigger the anti-retaliation provision of the Act. 

The FLSA governs federal wage and hour standards including, inter alia, minimum wage and overtime compensation requirements.  The FLSA also contains an anti-retaliation provision that forbids employers “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee” (emphasis added).  The Court held that if an oral complaint is “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 statute and a call for their protection,” it may be protected under the FLSA.  The Court did not address however whether the anti-retaliation provision covers only complaints made to the government, or whether internal complaints are also covered.
  
Employers may wish to consider asking employees to reduce complaints to writing, as this may help an employer defend a retaliation claim on the basis that the complaint was not a sufficiently clear and detailed assertion of FLSA protected rights.  Also, because it remains unclear whether internal complaints of FLSA violations are protected (as complaints to the government are), employers are well advised not to retaliate against employees who lodge such complaints. 

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We are available to discuss the Kasten decision.  If you should have any questions regarding this case, please contact us.