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Can My Employee Sue Me for FLSA Retaliation? The Supreme Court Weighs In

November 9, 2010

The Fair Labor Standards Act (FLSA) requires covered employers to pay their employees at least the minimum wage and overtime for all hours worked over 40 in a workweek, unless they qualify for an exemption. The same Act also prohibits retaliation against any employees who have "filed any complaint" alleging that they have not been properly paid. But what does the phrase "filed any complaint" mean? Does an employee actually have to file a written claim with his employer, the Department of Labor, or a court to be protected by the FLSA anti-retaliation provision? Or is it enough that he just verbally complained to a supervisor about how he was being paid? The U.S. Supreme Court recently heard oral arguments on this issue in the Kasten v. Saint-Gobain Performance Plastics Corp.

In Kasten, the 7th U.S. Circuit Court of Appeals – which covers Illinois, Indiana, and Wisconsin – had held that oral complaints were not protected by the FLSA anti-relation clause. Thus, employees in those states are currently protected from retaliation under the FLSA only if they submit a "written complaint." In contrast, the U.S. Department of Labor and many other federal circuit courts – including the 6th Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee – have concluded that the anti-retaliation provision protects "oral complaints" as well.

The Supreme Court considered this split among the federal appeals courts in oral arguments on October 13, 2010. Justices from both ends of the spectrum – including Justices Alito, Breyer, and Sotomayor – questioned how "formal" a verbal complaint should be to trigger the anti-retaliation provision. Justice Sotomayor expressed concern about whether a passing remark about a potential violation at a cocktail party should really be enough, while Justice Breyer suggested that oral complaints might need to be made in the context of something more structured, such as a union grievance procedure, for the anti-retaliation clause to apply. Also, although the vast majority of federal courts have long-held that internal employee complaints are protected, Justice Scalia suggested that perhaps the FLSA anti-retaliation provision only applies to complaints made to governmental agencies or the courts, and stated that therefore he would be reluctant to hold that verbal complaints to a supervisor are sufficient.

The Supreme Court is not expected to issue a decision in Kasten v. Saint-Gobain Performance Plastics for some time. In the meantime, most employers should assume that verbal complaints to a supervisor regarding wages and overtime issues are protected activity under the FLSA. Even those employers in such states as Illinois, Indiana, and Wisconsin should tread carefully, because although such verbal complaints are not currently protected in those states under the FLSA, the Department of Labor and state law may take a contrary view. Employers with questions about this issue, or wage-and-hour law compliance issues in general, are encouraged to contact any member of Varnum's Labor and Employment Practice Group.

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