Issues
Does the Fair Labor Standards Act's anti-retaliation provision, which protects employees who file complaints against their employers from retaliatory firings and other discriminatory acts, apply in the case of an employee who lodges an oral, rather than a written, complaint?
Petitioner Kevin Kasten sued his employer, Saint-Gobain Performance Plastics, Corp., alleging that Saint-Gobain terminated his employment in retaliation for his oral complaints regarding the location of the company's time clocks. Kasten alleges that Section 215(a)(3) of the Fair Labor Standards Act protects employees who make oral complaints from employer retaliation. However, Saint-Gobain asserts that Section 215(a)(3) only protects written complaints made to governmental authorities. The Seventh Circuit held that Section 215(a)(3) only protects written employee complaints. The Supreme Court’s decision will affect several aspects of the employer-employee relationship, including informal dispute resolution procedures in the workplace and employees’ abilities to raise their grievances without fear of retaliation.
Questions as Framed for the Court by the Parties
Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?
Facts
Petitioner Kevin Kasten worked for Respondent Saint-Gobain Performance Plastics ("Saint-Gobain"), a company that manufactures high performance plastic materials, from October 2003 through December 2006. To receive their paychecks, Saint-Gobain’s employees had to swipe in and out of a time clock. According to Kasten, due to the location of the time clocks, workers had to put on their required protective equipment before swiping in and remove the equipment before swiping out, preventing Saint-Gobain employees from getting paid for this activity. As a result, Kasten alleges that Saint-Gobain denied its employees between twenty minutes and 2.5 hours of pay per week. According to Saint-Gobain, the company's employee handbook provided that failure to comply with the time-clock policy would result in disciplinary action, including termination.
During Kasten’s employment with Saint-Gobain, he received several disciplinary actions relating to his punching in and out of the time clock. On February 13, 2006, Kasten received a written warning regarding his swiping in and out of the time clock. On August 31, 2006, Kasten received another written warning, warning him that further time clock violations would result in additional disciplinary actions, including termination. On November 10, 2006, Kasten received a third written warning and a one-day suspension. Kasten signed each of these warnings, acknowledging that he read the warnings and that he understood that he could receive future disciplinary actions if he continued to violate the time-clock policy. Subsequently, on December 6, 2006, Saint-Gobain suspended Kasten for again violating the time clock policy, and finally terminated his employment on December 11, 2006.
According to Kasten, he made several oral complaints to his supervisors about the location of the time clocks from October 2006 through December 2006. In particular, Kasten claims that he told his supervisors that employees were not paid for the time they spent putting on and taking off their protective equipment because of the location of the time clocks. At a meeting regarding Kasten’s suspension in December 2006, Kasten alleges he again told his supervisors that the location of the time clocks was illegal and that Saint-Gobain would lose if he sued the company. However, Saint-Gobain denies that Kasten made any verbal complaints about the placement of the time clocks.
On December 5, 2007, Kasten filed a lawsuit in the United States District Court for the Western District of Wisconsin, claiming that Saint-Gobain terminated him in retaliation for his verbal complaints, in violation of the Fair Labor Standards Act (“FLSA”). The District Court granted Saint-Gobain’s motion for summary judgment because Kasten did not file a written complaint about the location of the time clocks as required by the FLSA. On appeal, the United States Court of Appeals for the Seventh Circuit affirmed the district court’s ruling, holding that the phrase “file any complaint” in Section 215(a)(3) of the FLSA required an employee to submit a written complaint. The Supreme Court granted certiorari on March 22, 2010.
Analysis
This case concerns an interpretation of the Fair Labor Standards Act’s (“FLSA”) anti-retaliation provision. That provision forbids employers from firing or taking other retaliatory action against employees who file complaints against them. Specifically, this case turns on the meaning of the phrase “file any complaint” contained in Section 215(a)(3). Kasten contends that Section 215(a)(3) protects employees against retaliation from their employers for making oral complaints. Saint-Gobain argues instead that the statutory term “complaint” excludes not only oral complaints, but internal complaints of any kind. According to Saint-Gobain, a complaining employee must file a written complaint with a governmental body before the FLSA will protect the employee from retaliation. In affirming the district court’s entry of summary judgment against Kasten’s FLSA claim, the United States Court of Appeals for the Seventh Circuit agreed with Saint-Gobain that the language “file any complaint” required a written complaint, and that oral complaints could not give rise to retaliation claims under the FLSA.
Does the FLSA protect employees who file complaints with their employers?
Saint-Gobain presents an argument that the Seventh Circuit did not directly address, namely that the FLSA’s anti-retaliation provision does not apply to employees who file complaints internally with their employers, but only to employees who file written complaints with a governmental authority. In so doing, Saint-Gobain concedes that the word “complaint” is ambiguous when it stands alone. In the context of the FLSA, however, Saint-Gobain argues that “complaint” takes on a “specialized legal meaning,” i.e. “an official grievance filed with a governmental authority.”
Kasten does not mention this point in his brief, but the United States as amicus curiae in support of Kasten, asserts that Saint-Gobain can no longer bring the above argument before the Court. The government claims that, because Saint-Gobain did not raise the issue in its initial brief opposing certiorari, it has now abandoned the argument. The United States also fights Saint-Gobain’s claim on the merits by urging a broad interpretation of “any complaint.” Specifically, the government says that the word “any” includes employees’ complaints to either the government or an employer.
Saint-Gobain disputes the government’s argument by asserting that it never abandoned its argument about complaints to employers. It also contends that before the Court can settle the broader question of oral complaints to employers, it will have to resolve this issue first in any case.
Does the FLSA cover oral complaints?
Kasten argues that the verb “file” can mean several different things and, with particular relevance to this case, can include any type of presentation for consideration. Kasten points out that federal judges often use the word “file” when referring to oral complaints and motions. . He cites further examples of other governmental bodies that employ the word similarly. . With regard to the FLSA itself, Kasten echoes the government’s argument by proposing an expansive interpretation of the word “any.” He also points to the absence of the restrictive words “in writing.” Finally, Kasten argues that the FLSA’s drafters originally intended to aid blue-collar workers who may not have been able to craft a written complaint. According to Kasten, these workers could not possibly have benefited fully from the FLSA if Congress had intended that the anti-retaliation provision apply solely to written complaints.
Saint-Gobain dismisses Kasten’s alternate definitions of “file.” It further asserts that, even if the FLSA’s scope includes internal complaints to employers, the word “file” renders the law inapplicable to oral complaints. Saint-Gobain also argues that every other time the word “file” appears in the FLSA, Congress in each instance intended a reference to something in writing. Saint-Gobain distinguishes Kasten’s examples of oral “filings” as contrary in meaning to both customary statutory precision, and even normal colloquial usage of the word.
Kasten makes an additional, policy-based argument, which advocates encouragement of open, oral communication between employers and employees. According to him, an interpretation of the FLSA that protects oral complaints to employers will lead to more disputes being resolved internally without having to resort to governmental remedies. Saint-Gobain concedes that this might indeed be good policy, but the real goal of the anti-retaliation provision was to increase the amount of information that the government received about workplace conditions. This purpose is, according to Saint-Gobain, at odds with an aim to increase the frequency of in-house dispute resolution, and that while the latter result might be a positive change, it cannot control the Court’s interpretation of the FLSA.
If the FLSA’s anti-retaliation provision is ambiguous, how broadly or narrowly should the Court construe it?
Kasten finally argues that, if the statute’s applicability to oral complaints is unclear due to ambiguity, the Court should grant deference to the interpretations of the Department of Labor and the U.S. Equal Opportunity Employment Commission. Those two groups have historically interpreted the FLSA broadly enough to include situations such as Kasten’s. Kasten views this interpretation as a decades-old stance and rejects the Seventh Circuit’s characterization of it as merely a “litigation position.”
Saint-Gobain rebuts this argument by claiming that no deference is appropriate in cases where the government advances a position that is “clearly wrong.” It further adds that, while situations that involve highly complex or technical language may call for deference governmental agencies, the phrase “file any complaint” does not present such a case. Although Saint-Gobain does not believe that the FLSA is ambiguous, it alternatively argues that according to the rule of lenity, the Court should interpret the statute narrowly. Because the FLSA imposes criminal liability on violators of the anti-retaliation provision, Saint-Gobain invokes this rule to urge for a strict construction of the law not just in criminal contexts, but in civil cases as well.
Discussion
The Supreme Court will decide whether employees who make oral complaints are protected from employer retaliation under Section 215(a)(3) of the Fair Labor Standards Act. Kasten argues that Section 215(a)(3) protects oral complaints as well as written complaints. However, Saint-Gobain counters that Section 215(a)(3) only protects written complaints made to a government authority.
Employees’ Interests
The United States argues that a decision in favor of Saint-Gobain would severely disadvantage workers who cannot make written complaints, such as workers with low English skills or low incomes. The National Employment Law Project (“NELP”) agrees with the United States, arguing that illiterate workers, who make up a large portion of the American workforce, will not be able to file written complaints, and will also fear that attempting to file written complaints without sufficient language skills will notify their employers of the fact that they cannot read or write. In addition, NELP argues that immigrant workers may also be unable to file written complaints because of their limited English writing skills.
In addition, the Lawyers’ Committee for Civil Rights Under Law (“LCCRUL”) contends that a decision holding that oral complaints are not protected under the FLSA will discourage workers from reporting their grievances out of fear that their employers will fire them for making oral complaints. The United States adds that not protecting oral complaints will allow employers to fire employees immediately after they make oral complaints. NELP argues that if oral complaints were unprotected, employers could fire an employee for simply asking about pay practices, and that the employer could threaten the employee's co-workers that they will also be fired if they complain or ask questions.
Saint-Gobain argues that protecting oral complaints would discourage employees from complaining to government agencies, undermining the FLSA’s goal of information-sharing. Additionally, Saint-Gobain contends that leaving oral complaints unprotected would not cause employers to fire employees immediately after they voice concerns, and that the employees' fear of retaliation would instead encourage employees to complain to the proper government authority, furthering the FLSA’s goal of information-sharing.
Employers' Interests
The Equal Employment Advisory Council (“EEAC”) argues that protecting oral complaints under the FLSA would hinder employers' ability to effectively manage their workplaces. Specifically, EEAC asserts that protecting oral complaints would force employers to act upon frivolous complaints, and may even cause an employer to hesitate to take a necessary and justified disciplinary action against their employees, for fear that an employee may have made, or will claim to have made, an oral complaint at some point in the past. EEAC contends that this problem would especially impact large companies with multiple levels of supervision and many opportunities for employees to informally and perhaps anonymously air oral complaints. Saint-Gobain argues that protecting oral complaints would cause employees to complain or lie about the existence of prior oral complaints for the sole purpose of filing lawsuits against the employer under the FLSA. EEAC cautions that by protecting oral complaints under the FLSA, the Court would unfairly increase employers’ already substantial litigation burden related to FLSA claims.
On the other hand, the American Federation of Labor and Congress of Industrial Organizations points out that protecting employees who make oral complaints is consistent with most workplace grievance procedures, in which the first step is to make a verbal complaint with a supervisor. Moreover, NELP argues that protecting oral complaints would promote informal dispute resolution in the workplace, which is in accordance with employers' preferences for the simple, efficient resolution of workers' concerns. LCCRUL argues that if employers can terminate employees for making oral complaints, employees will file lawsuits rather than complain to their supervisors, harming the interests of employers.
Conclusion
In this case, the Supreme Court will decide whether an oral complaint is a protected activity under the Section 215(a)(3) of the Fair Labor Standards Act. Kevin Kasten argues that oral complaints are protected from employer retaliation under Section 215(a)(3). However, Saint-Gobain Performance Plastics Corp. asserts that Section 215(a)(3) only protects written complaints made to a government authority. The Supreme Court’s decision will affect several aspects of the employer-employee relationship, including informal dispute resolution procedures in the workplace and employees’ abilities to raise their grievances without fear of retaliation.
Written by
Edited by
Acknowledgments
Additional Resources
· Wex: Fair Labor Standards Act
· Workplace Prof Blog: Supreme Court Grants Cert in Saint Gobain FLSA Case (Mar. 22, 2010)
· Law.com, Tresa Baldas: High Court to Decide Whether Anti-Retaliation Shield Protects Only Those Who Complain in Writing (Mar. 25, 2010)