Supreme Court Rules Oral Complaints Covered By FLSA Retaliation Provision

Today, March 22, 2011, the Supreme Court issued its decision in the Kasten v. Saint-Gobain Performance Plastics Corp. case.  The sole issued addressed by the Court was “whether ‘an oral complaint of a violation of the Fair Labor Standards Act’ is ‘protected under [the Act’s] anti-retaliation provision.’”  Given the recent spate of pro-employee decisions, it is hardly surprising that the Court answered the question in the affirmative.  The court began its analysis by noting that the FLSA protects employees who have “filed any complaint.”  The decision by Justice Breyer focuses on the meaning of those three words – filed any complaint.  While he concludes that the words in isolation are open to competing interpretations, consideration of the language in view of its purpose and context permits only one interpretation.  I will spare you the lengthy – some might say tortuous reasoning – and go straight to the holding:

To fall within the scope of the antiretaliation 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 statute and a call for their protection.  This standard can be met, however, by oral complaints, as well as written ones.

The Court then remanded the case for a determination of whether the employee could meet the notice requirement, i.e. whether the complaint was sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, etc. 

Justice Scalia filed a dissenting opinion in which he takes the position that the plain language of the FLSA and the context in which it appears makes clear that the retaliation provision contemplates only an official grievance filed with a court or an agency and not oral complaints, or even formal written complaints, from an employee to an employer.  His approach would eliminate the need for a test of whether the complaint is sufficiently clear because filing a complaint with a court or an administrative agency is “quite obviously an unambiguous assertion of one’s rights.”

With the Kasten decision, the Court continues it’s disturbing trend of creating more uncertainty in employment law and ultimately promoting more litigation.  As with the recent Cat’s Paw decision, the Court adopts a standard borrowed from negligence law – the “reasonable employer” – to determine whether a claim exists.  Determining whether a reasonable employer would have understood a certain statement to be sufficiently clear and detailed in light of both content and context to amount to an assertion of FLSA rights and a call for their protection will require a fact intensive analysis that is inherently incompatible with disposition through a motion for summary judgment.  The end result will be more trials and less certainty for employers because just about any statement could be a complaint under the Court’s new standard.  Consider a couple of examples:

  • An employee, upon being handed his paycheck, says, “Is that all - I think I should be paid more.”  Is this a complaint about low pay or a FLSA complaint about unpaid wages and/or overtime?  What if the employee said a little more, “Is that all - I think I should be paid more.  I must have worked over fifty hours last week.”
  • An employee says to her supervisor, “I don’t think it’s fair that I always have to stay late.  I don’t get any credit for all the extra things I do around here.”  Is this an employee feeling unappreciated or an employee making a claim that she is misclassified as exempt and/or entitled to unpaid overtime?  What if the employee said a little more, “I don’t think it’s fair that I always have to stay late.  I don’t get any extra pay for all the extra things I do around here and that’s not right.” 
  • An employee says to his supervisor, “It took me three hours last night but I finally read through all of the training materials you gave me – I would prefer to have time during the workday to do training in the future.”  Is this a claim for wages for extra hours worked in training ?  What if the employee said a little more, “It took me three hours last night but I finally read through all of the training materials you gave me – if  have to spend my evening working, I think I should be compensated for it.” 

Under the Court’s new standard, all of these would require a fact specific analysis as to whether they constituted FLSA complaints that might end up being made by a jury.  Of course, employees still have to prove that the complaint was the reason for the adverse employment action if they are to prevail.  Nevertheless, this decision is a very favorable one for Plaintiffs.

What can employers do in response to the Kasten decision?  The best course of action is training front line supervisors to be more sensitive to what might constitute a potential FLSA complaint.  My examples above are intentionally vague - employees are often more direct in their complaints.  That does not mean that managers pick up on potential FLSA complaints that are made in general conversation – they need to be trained to do so.  Similarly, higher level managers and human resources personnel need to be trained to consider the issue when they are consulted about adverse employment decisions and to probe to determine whether the employee in question may have made statements that could be construed as FLSA complaints. 

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