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The United States Supreme Court recently held that the Fair Labor Standards Act ("FLSA") protects oral, as well as written complaints; however, the court opted not to decide whether an oral complaint submitted to an employer, but not the Department of Labor (DOL), constituted protected activity under the FLSA. Kasten v. Saint-Gobain Performance Plastics Corp., 2011 WL 977061 (Mar. 22, 2011).

Saint-Gobain had located its time clocks between the area where its employees put on their required protective gear and the area in which they performed their job duties. Due to the placement of the time clock, Saint-Gobain did not compensate the employees for time spent "donning and doffing" their protective gear. In a related case, a federal district court ruled that this practice violated the FLSA.

In Kasten, the plaintiff claimed that Saint-Gobain terminated him in retaliation for having made repeated oral complaints about the unlawful placement of Saint-Gobain's time clock. In particular, the plaintiff alleged that (1) he "raised a concern" with his shift supervisor that the placement of the time clock was illegal, and (2) he orally informed human resources that he was thinking about initiating a lawsuit regarding the placement of the time clock and, if he did so, Saint-Gobain would "lose." The plaintiff, however, never submitted a written complaint regarding the time clock to Saint-Gobain or the DOL.

In response to the plaintiff's lawsuit, Saint-Gobain moved for summary judgment on the basis that the FLSA only protected written complaints. Saint-Gobain relied on the express language of 29 U.S.C. § 215(a)(3), which states that an employer cannot "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee." (Emphasis added).

To resolve a conflict among the circuits on this issue, the Supreme Court granted certiorari on the question of whether "an oral complaint of a violation of the [FLSA]" is "protected conduct under [the FLSA's] anti-retaliation provision." The Supreme Court held that an oral complaint "that is 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…" is protected conduct under the FLSA's anti-retaliation provision. The Supreme Court remanded the case for determination as to whether the plaintiff could satisfy this standard.

Although raised during oral argument, the Supreme Court refused to decide whether, to be protected conduct, an oral complaint must be submitted to the DOL and not just the employer. The court ruled that this issue was not adequately raised before oral argument and, therefore, was not ripe for review.

Based on Kasten, it is clear that oral complaints can be protected activity for purposes of an FLSA retaliation claim; however, it remains to be determined by the lower courts whether oral complaints presented to an employer, but not the DOL, are protected. Given this uncertainty and the possibility that courts will hold that oral complaints made to an employer constitute protected conduct, a best practices approach for employers may be to train front line supervisors and managers to recognize FLSA complaints and implement a complaint reporting/investigation procedure similar to those used for sexual harassment.