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Court takes up verbal complaints question

Washington – The Fair Labor Standards Act protects workers who complain about workplace conditions from facing retaliation from their supervisors. But do those protections apply when the employee protests verbally, as opposed to filing a written complaint?

The justice of the Supreme Court grappled with that issue during oral arguments Oct. 13 in Kasten v. Saint-Gobain Performance Plastics.

The case stems from a lawsuit filed by Kevin Kasten against Saint-Gobain alleging violation of FLSA’s anti-retaliation clause. The anti-retaliation prohibition makes it unlawful “to discharge or in any other manner to discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted in any proceeding under” FLSA.

Kasten claimed he was fired after making verbal complaints about the location of time clocks, which required workers to punch in after putting on their safety gear and before the gear could be removed.

The federal district court granted summary judgment in favor of Saint-Gobain because Kasten’s complaints were not written, and therefore not protected under FLSA. The 7th Circuit affirmed, and the Supreme Court granted certiorari to settle the split in the circuits.

What does ‘file’ mean?

James H. Kaster, partner in the Minneapolis office of Nichols Kaster, argued that complaints like Kasten’s were exactly the type FLSA was meant to protect.

“‘Any’ means any, including formal or informal, written or unwritten communications,” Kaster said. “The words in the statute were designed to have a broad construction.”

Justice Sonia Sotomayor wondered just how broad the construction should go.

“What does ‘filing a complaint’ mean?” Sotomayor queried, asking whether an employee voicing concerns at a cocktail party is protected.

“Filing means directing it to somebody who can do something about it,” Kaster said.

“Well, at a cocktail party that employee may be there on personal time, but when he goes back to work the next morning he could do something,” Sotomayor said. “Is that enough?”

“It may be, if it’s directed at the responsible party,” Kaster said.

Justice Ruth Bader Ginsburg wondered if that defied the language of the statute.

“Every other time the word ‘file’ is used in the Fair Labor Standards Act, it refers to a writing,” Ginsburg said. “You are urging a meaning that deviates from the standard meaning of the term in the very Act at issue.”

“It means submit or lodge,” Kaster said. “[The] defendant’s own policies use it to describe a verbal communication.”

“Now come on, people don’t talk like that!” said Justice Antonin Scalia. “That is absurd! You are not ‘filing’ an argument right now.”

Scalia added that he would be willing to find that verbal complaints are protected only if such complaints are directed to a government agency. “But if you are talking about oral filings of the complaints with employer, I am very troubled,” Scalia said.

Jeffrey B. Wall, assistant to the solicitor general arguing as amicus in Kasten’s favor, noted that oral complaints are covered by a host of other similar statutes, and it has “not proven unworkable under any of the statutory schemes.”

Carter Phillips, partner in the Washington office of Sidley Austin, argued that the 1938 Congress that adopted the statute would not have considered verbal complaints covered.

“I think you have to read their language as the way it was written and as the way they would have understood it at the time,” Phillips said.

But Ginsburg asked if such an interpretation would hurt the workers the law was meant to protect.

“This statute in 1938 affected people, many [of whom] were illiterate,” Ginsburg said. “They couldn’t write a complaint. Many were immigrants who weren’t familiar with the language. For that universe of people, wouldn’t Congress have meant that all complaints are ok?”

“It seems to me the better way to evaluate this is not [to ask] did Congress have in mind a group of illiterate employees or not, but what language did Congress use in trying to formulate the specific provision that gives rise to the protections against retaliation,” Phillips said.

When Scalia again asserted that the best approach may be allowing verbal complaints to the government, but not to a supervisor, Ginsburg asked: “Wouldn’t there be every reason to want the employee to complain first to the employer rather than making a federal case out of it by complaining to a government agency?”

Justice Elena Kagan did not take part in the case’s consideration. A ruling is expected later this term.

Kimberly Atkins can be reached at kimberly.atkins@lawyersusaonline.com.

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