If you just can’t shake the feeling that the U. S. Supreme Court has been on a crusade recently to protect employees from what it views as unlawful retaliation, you’re not alone. The most recent example is a 6-2 ruling that a verbal complaint over the locations of time clocks can constitute protected activity implicating the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”).
In Kasten v. Saint-Gobain Performance Plastics Corp., Kasten complained to Saint-Gobain that its placement of time clocks prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear. According to his lawsuit, the company retaliated by firing him for making the complaint. Saint-Gobain argued that the FLSA protects only written complaints, not verbal ones. The district court granted Saint-Gobain’s motion for summary judgment, finding that the FLSA’s anti-retaliation provision did not cover verbal complaints, and the court of appeals affirmed.
The Supreme Court, sans Elena Kagan, disagreed. It considered whether employee complaints about an employer’s wage and hour practices must be in writing to enjoy statutory protection and concluded that verbal complaints can be sufficient. That didn’t resolve Kasten’s case, however. The justices ultimately sent the case back to the lower court to address the question of whether a complaint made solely to an employer, whether verbally or in writing, falls under the protective mantle of the FLSA or whether the complaint must be made to a court or governmental agency.
Justices Scalia and Thomas, in a strongly-worded dissenting opinion, set the stage for a future showdown on that issue. They said it was their belief that the question was sufficiently before the court and the answer should be that the FLSA's anti-retaliation provision does not cover complaints to an employer at all, only those made to a court or government agency.