On March 22, 2011, the United States Supreme Court ruled in a 6-2 majority opinion that oral complaints made by an employee are to be considered protected conduct under the anti-retaliation provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. § 215(a)(3). Kasten v. Saint-Gobain Performance Plastics Corp., Dkt. No. 09-834, Mar. 22, 2011. In Kasten, the employee-plaintiff brought an antiretaliation lawsuit against his former employer for allegedly suspending and terminating him in response to verbal complaints made by him concerning the legality of location of the employer’s time clocks. The District Court entered summary judgment for in favor of the employer, which the United States Court of Appeals for the Seventh Circuit upheld due to its determination that the plain language of the antiretaliation provision of the FLSA did not cover unwritten, verbal complaints.

Upon review, the Supreme Court vacated the Seventh Circuit Court of Appeals decision. In doing so, the Supreme Court concluded that the lower courts’ textual interpretation of the statutory language of the FLSA’s antiretaliation provision alone was insufficient and that the purpose and context of the FLSA must be considered as well. Under such an analysis, and with deference to the United States Secretary of Labor’s position that the words “filed any complaint” encompass oral complaints, the Court found that limiting the applicability of § 215(a)(3) to only written complaints would not only undermine the FLSA’s basic objectives, but would also weaken the ability of those agencies charged with enforcing the FLSA. The Supreme Court established a “fair notice” standard and further stated that, “[t]o 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[,]” and that this standard can met by both oral and written complaints.

It remains to be seen how the Supreme Court’s broad interpretation of the FLSA’s antiretaliation provision and application of its “fair notice” standard will affect employers. Accordingly, employers will need to be conscious of both oral and written employee complaints on a situation-by-situation basis, documenting both as well as the employer’s investigation of them.

For more information or questions, please contact Bob Riegel or Michael Lufkin.