Verbal Complaints Can Constitute Protected Activity Under the FLSA

In an opinion released yesterday, the U.S. Supreme Court held that an employee who makes a verbal complaint about suspected Fair Labor Standards Act (FLSA) violations can be protected under the FLSA’s anti-retaliation provision.

The case, Kasten v. Saint-Gobain Performance Plastics Corp., involved an employee, Kevin Kasten, who alleged that he made repeated verbal complaints to supervisors and human resources representatives that the location of time clocks in the workplace violated the FLSA because employees did not receive credit for time spent changing in and out of their work clothes. Saint-Gobain denied Kasten had complained. After multiple disciplinary actions, Saint-Gobain terminated Kasten’s employment, and Kasten claimed his termination was unlawful retaliation for his verbal complaints under the FLSA.

The FLSA’s anti-retaliation provision forbids employers from, among other things, discharging an employee because that employee has “filed any complaint” against the employer relating to the FLSA. The sole issue addressed by the Court was whether an oral complaint is protected under this provision. The Court refused to consider Saint-Gobain’s alternative argument that the anti-retaliation provision applies only to complaints filed with a governmental body and not to those complaints made to a private employer.

The Supreme Court held that the term “filed any complaint” includes oral, as well as written, complaints. The Court further clarified that to fall within the protection of the anti-retaliation provision, a complaint, whether oral or written, “must be 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 [FLSA] and a call for their protection.” The Court remanded the case for a determination of whether Kasten met this notice requirement.

The Court’s decision in Kasten signals a further expansion of employee protections under anti-retaliation laws and emphasizes the need for employers to be alert and aware of the broad scope of employee complaints which can trigger anti-retaliation protection. The decision also underscores the need to train supervisors and managers to recognize complaints and ensure that complaints are reported to appropriate representatives within the company and properly addressed.

Tracey Donesky is a shareholder at the Minneapolis law firm of Leonard, Street and Deinard.

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