In the case of Kasten v. Saint Gobain Performance Plastics Corp., the Seventh Circuit Court .jpg)
of Appeals recently considered the question of whether verbal complaints may constitute protected activity under the FLSA. In this case, the plaintiff alleged that he verbally complained to his supervisors and the company’s human resources department about the legality of the location of the company’s time clocks. The plaintiff alleged that he told two supervisors and a human resources employee that the placement of the clocks was illegal because it prevented employees from being paid for time spent donning and doffing required protective gear.
The Seventh Circuit first affirmed the district court’s conclusion that internal, intra-company complaints may be protected activity for purposes of the anti-retaliation provision of the FLSA. The Court then turned to the question of whether verbal, intra-company complaints may be protected activity.
The Seventh Circuit held that because the FLSA prevents employees from being retaliated against for filing complaints, the statute could not be interpreted as intending to protect unwritten complaints. The court viewed the “natural understanding” of the phrase “file any complaint” to connote the use of a writing. Therefore, to constitute protected activity under the FLSA, the “complaint” must involve the submission of a writing to an employer, court, or administrative body. Notably, other courts have reached a different conclusion.
This blog entry was authored by Theresa Waugh.
The U.S. Supreme Court has agreed to review the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics (7th Cir. 2009), in which that court held that an oral complaint of a violation of the Fair Labor Standards Act (FLSA) is not considered protected conduct under the Act’s anti-retaliation provision. Continue reading about this development at Littler's D.C. Employment Law Update blog.