Retaliation Provision of FLSA Does Not Apply to Unwritten Oral Complaints

August 6, 2009

written by Carol A. Chapman
The Seventh U.S. Circuit Court of Appeals (which covers Wisconsin) recently concluded that the plain language of the Fair Labor Standards Act (FLSA) requires that an employee’s complaint be in writing to qualify as protected activity under the Act’s retaliation provision. That conclusion is different from that of other federal appellate courts. Accordingly, it is possible that the U.S. Supreme Court may ultimately review the issue.

Kevin Kasten was an employee at Saint-Gobain Performance Plastics Corporation. He was reprimanded three times for failing to use the time clock to clock in and out. With each written reprimand he received, he signed an acknowledgment receipt and orally complained to various supervisors and an HR staff member that the location of the time clock was illegal because, among other things, it prevented employees from being paid for time donning and doffing protective gear.

After Kasten failed to clock in a fourth time, he was terminated. He sued his employer under the FLSA, claiming he was terminated in retaliation for his complaint. The district court dismissed the case without a trial, concluding that oral complaints, when not supported in writing, are not protected activity under the FLSA’s antiretaliation provisions. Kasten appealed to the Seventh Circuit.

On appeal, the Seventh Circuit reviewed two questions:

  1. Whether internal complaints, as opposed to complaints filed with governmental agencies or courts, are protected activity under the FLSA, and
  2. Whether unwritten oral complaints are protected activity

In concluding that internal complaints are protected activity, the Seventh Circuit examined the plain language of the FLSA’s retaliation provision, which states that it is “unlawful for any person to discharge… any employee because such employee has filed any complaint.” Concentrating on the words “any complaint,” the court surveyed the interpretation of other circuit courts of appeals. Based on its review, the Seventh Circuit, joining the First, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits, concluded that internal complaints are covered under the FLSA.

The court then moved to the second question before it: whether unwritten oral complaints are protected activity under the FLSA’s retaliation provisions. In concluding that they are not, the court again went to the plain language of the statute, this time concentrating its analysis on the word “filing.” In determining that “filing” required the generation of papers or a document, the court again surveyed other circuits to determine their interpretation. The court found that the circuit courts were split.

The Seventh Circuit noted that in its review of decisions by the Sixth, Eighth, and Eleventh Circuits, in which the courts found that oral complaints are protected activity, little or no guidance was provided about how they reached that conclusion. Conversely, in its review of decisions by the Second and Fourth Circuits, the Seventh Circuit noted that the courts specifically addressed the text of the FLSA and its retaliation provisions in reaching their conclusions that oral complaints are not protected activity.

Based on its review, the Seventh Circuit held: “Because we believe that the FLSA’s use of the phrase ‘file any complaint’ requires [an] employee to submit some sort of writing, we agree with the district court’s conclusion that Kasten’s alleged complaints were not protected activity under the [FLSA].” Kasten v. Saint-Gobain Performance Plastics Corp., ___ F.3d ___, 2009 WL 1838291 (7th Cir., 2009).

Bottom line
In this decision, the Seventh Circuit identifies the clear split among the federal circuit courts of appeal on whether unwritten oral complaints are sufficient to invoke the retaliation provisions of the FLSA. Under this decision, a Wisconsin employee will be unsuccessful in prosecuting retaliation claims based solely on oral complaints made to his supervisor or HR representative. However, because of the clear split in the circuit courts, the U.S. Supreme Court may take a future case on the issue to resolve the competing interpretations.

As always, you must train your supervisors and HR officials to understand that retaliating against an employee for filing an internal or external complaint is unlawful. Equally important, they should be trained on how to prevent retaliation claims in the first place.