Employees in Wisconsin no longer need to file a written complaint to come within the anti-retaliation provisions of the Fair Labor Standards Act.
The U.S. Supreme Court held March 22 that an oral complaint suffices, provided it 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.”
In doing so, the court reversed the governing law in the 7th Circuit, which required filing a written complaint. And, Milwaukee employment law attorney Jeffrey Hynes said, it makes the Wisconsin Fair Labor Standards Act largely irrelevant.
Under the anti-retaliation provisions of the Wisconsin statute, Hynes said, an employee must file a written complaint. The only limited exception is if the employee can show the employer retaliated, believing the employee was going to file a complaint — a difficult burden to meet.
The federal statute already provided more remedies, and now it also will be easier to prove a violation under federal law, Hynes said.
The case involved Kevin Kasten, who worked for the multinational Saint-Gobain Performance Plastics Corp. According to Kasten, he repeatedly complained the placement of time clocks prevented workers from receiving credit for the time they spent putting on and taking off their work clothes.
When Kasten was fired, he sued in federal district court, alleging his discharge was in retaliation for filing a complaint. Summary judgment was entered in favor of Saint-Gobain because Kasten never filed a written complaint, and the 7th Circuit affirmed (570 F.3d 834 (2009)).
The U.S. Supreme Court reversed in an opinion by Justice Stephen Breyer, holding the FLSA covers oral complaints, with Justices Antonin Scalia and Clarence Thomas dissenting.
The FLSA provides minimum wage, maximum hour and overtime pay rules. It also, according to 29 U.S.C. 215(a)(3), forbids employers “to 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 Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.”
At issue, for both the majority and the dissent, was the meaning of the phrase, “filed any complaint.”
However, while the majority found the meaning of “filed” to be dispositive, the dissent looked instead at the meaning of “complaint.”
Without covering “complaint,” the majority opinion concluded the word “filed” is broad enough to include written and oral complaints, citing definitions from dictionaries, statutes and judicial opinions contemporaneous with the enactment of the statute in 1938.
The majority further found the objectives of the statute would be undermined if a written complaint was necessary.
“Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?” according to the court.
But the court agreed with Saint-Gobain that fair notice is required and that “filing” is “a serious occasion, rather than a triviality.”
“The phrase ‘filed any complaint’ contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns,” according to the court.
The dissent by Justice Scalia, in contrast, did not discuss the meaning of the word “filed” but instead concluded that, in 1938, the word “complaint” only encompassed filings lodged with a government agency.
Scalia wrote, “at the time the FLSA was passed (and still today) the word when used in a legal context has borne a specialized meaning: ‘[a] formal allegation or charge against a party, made or presented to the appropriate court or officer (cites omitted).'”
The dissent also noted every other use of the word “complaint” in the FLSA refers to an official filing with a governmental body.
Finally, the dissent noted it was not until 1977 that the law created a private right of action for retaliation. The dissent remarked, “It would seem more strange to require the employee to go to the (Department of Labor) to establish, and punish retaliation for, his intracompany complaint, than to require the (DOL)-protected complaint to be filed with the (DOL) in the first place.”
Hynes praised the ruling as consistent with both the letter and the remedial spirit of the law.
“The reality is that employees who are victims of FLSA violations typically react to the injustice by objecting orally and instantaneously,” he said. “The court recognized that the oral/written distinction is artificial and illogical.”
Hynes also noted the interplay of the FLSA, which guarantees the basic right to be paid for work performed, with other federal laws involving discrimination.
“Employers already have in place policies to deal with oral complaints involving race or sex discrimination,” he said. “So employers only need to do what they do with respect to those claims.”
Issue: Does the anti-retaliation provision of the FLSA include oral complaints?
Holding: Yes. A complaint need not be written to be “filed.”
Attorneys: For Plaintiff: James H. Kaster, Adrianna s. Haugen, Minneapolis; Eric Schnapper, Seattle; For Defendant: Jeffrey A. McIntyre, Thomas P. Godar, Barbara J. Zabawa, Madison; Carter G. Phillips, Eric D. McArthur, Washington, D.C.
Full text available at www.wislawjournal.com
David Ziemer can be reached at [email protected].