Supreme Court Rules Verbal Complaint Can Support FLSA Retaliation Claim
On March 22, 2011, the United States Supreme Court ruled in Karsten v. Saint Gobain Performance Plastics Corp. that the Fair Labor Standards Act's anti-retaliation provision applies to both oral and written complaints by employees. Under the FLSA's anti-retaliation provision, employers are prohibited from discharging or discriminating against "any employee because such employee has filed any complaint" alleging a violation of the FLSA. Lower courts have struggled with whether an employee's verbal complaint regarding an FLSA violation qualifies as the "filing" of a "complaint" such that an adverse employment action taken in response to the complaint would qualify as retaliation under the FLSA.
The plaintiff, Karsten, had complained to his employer that the location of time clocks between the area employees put on (and took off) their protective gear and the area in which they worked prevented them from being paid for the time they spent putting on and taking off their work clothes. Karsten claimed that he was subsequently discharged for repeatedly calling the unlawful time clock situation to the attention of his employer. Both the district court and the Seventh Circuit Court of Appeals ruled that Karsten's retaliation claim had to be dismissed because he never "filed" any sort of written complaint objecting to the time clock location.
In a 6-2 decision, the Supreme Court held that oral complaints regarding FLSA violations are protected and can support a claim for retaliation. But a vague off-the-cuff remark is probably not sufficient to constitute a "filed . . . complaint." Rather, the Court acknowledged there must be "some degree of formality" to the complaint and the employer must have "fair notice" that a complaint "has been lodged."
Although the Court resolved the split among courts regarding whether an oral complaint can support an FLSA retaliation claim, it did not resolve the question of whether an oral complaint lodged with a private employer rather than a government entity is sufficient. Justice Scalia, in his dissent, argued that only complaints filed with a government agency will support an FLSA retaliation claim. Although Karsten's employer is a private company, it failed to raise this argument in its response to Karsten's request for appeal to the Supreme Court and, therefore, the Court refused to consider the argument. Other courts, however, including the Sixth Circuit, which covers Michigan, have held that complaints made to private employers are protected by the FLSA's anti-retaliation provision.
The Karsten decision continues a string of victories at the Supreme Court for retaliation plaintiffs under employment laws. Karsten highlights the importance of taking a careful approach toward disciplining any employee who has previously complained, either verbally or in writing, about violations of antidiscrimination statutes or wage and hour laws.
If you have any questions about Karsten or strategies for minimizing retaliation claims in general, please contact any member of Varnum's Labor and Employment Relations Group.