Labor and Employment Law Weekly Update (Week of March 28, 2011)

The federal FLSA (http://www.dol.gov/whd/flsa/) establishes various wage and hour standards and rules, and also includes an anti-retaliation provision making it clear that it is illegal for an employer to discharge or discriminate against an employee who has "filed any complaint" relating to issues covered by the FLSA. In Kasten v. Saint-Gobain Performance Plastics Corporation (http://tinyurl.com/47otxby), handed down on March 22, 2011, the U.S. Supreme Court looked at the issue of whether "complaints" covered by this provision can be oral as well as written.

The trial court that initially heard the case, as well as the Seventh Circuit Court of Appeals, which reviewed the issue on appeal, had ruled that complaints covered by the FLSA's anti-retaliation provision had to be in writing. By a 6-2 majority (with Justices Scalia and Thomas dissenting), the Supreme Court reversed and held that an individual could "file a complaint" under the FLSA provision either verbally or in writing. The Court undertook an analysis of the statutory intent, as well as the purpose and context of the provision at issue, and came to the conclusion that it would be unfair and inconsistent with the purposes of the FLSA to require that actionable complaints be in writing.

In reaching its decision, the Supreme Court recognized that employers need to be given fair notice of a complaint in order for the anti-retaliation provision to be applicable. In so doing, the Supreme Court held that a complaint — whether verbal or written — "must be sufficiently clear and detailed for a reasonable employer to understand it" to be a call for the protection of rights guaranteed by the FLSA.

The employer had made the alternative argument before the lower courts that the anti-retaliation provision did not apply because the complaint at issue was made to a private employer, not a government agency. The lower courts rejected that argument. However, since that argument was not raised in the briefs bringing the case before the Supreme Court, that court expressly declined to deal with that argument. Nevertheless, the decision reached by the Supreme Court in this matter certainly suggests that it would agree with the lower courts that complaints brought before a private employer, as well as before a government agency, satisfy the requirements of the anti-retaliation provision.

In light of this new decision, employers are well advised to provide training for management on such topics as what can qualify as a complaint covered by the FLSA anti-retaliation provision, how to document any such complaints, how to respond to employees when complaints are received, and where to bring complaints for review and resolution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.