General Litigation

Supreme Court Allows Oral Wage Complaints to Form Basis For Retaliation

Ina decision that makes it easier to file retaliation claims against employers, the Supreme Court ruled yesterday that workers who complain to their employers about wage violations are protected from retaliation even if the complaints were not in writing.  The case Kasten v. Saint-Gobain Performance Plastics Corp.,  was decided by a vote of 6-2 (Justice Kagan recused herself from the case because the Justice Dept. had filed an amicus brief while she was Solicitor General).  The case dramatically changes the landscape of employment claims  in New York as the decision specifically overturns a 1993 case from the New York area.

This decision is the latest in a series of court cases and new State statutes that increase the exposure of employers to costly wage and hour claims under the Fair Labor Standards Act (FLSA). The FLSA was enacted in 1938 and contains a provision that says employers may not retaliate against any worker who “filed any complaint” related to his working conditions.  SO the highest court in the land now had to deal with the issue of whether filed any complaint meant that the complaint had to be in writing.

Kevin Kasten orally complained to his supervisors that it was unfair that workers were not paid for the time they had to don protective clothing which took a significant amount of time to put on and remove.  Also, he orally complained that the time clocks were located far beyond the changing area further adding to the unpaid time. Shortly after his complaint, the company terminated him. While the company says he was fired for unrelated reasons, Kasten claimed it was in retaliation of his complaint and that the firing violated the FLSA.

The lower federal court dismissed the claim finding that “filed any complaint” meant “filed any written complaint.”  The federal appellate court agreed with the lower court’s decision. Justice Breyer, writing for the Court disagreed, saying many  State statutes and federal regulations permitted the “filing of oral and written complaints” so that it is clear that in statutory construction “filed” can apply to oral complaints.  He noted that while Webster’s Dictionary defined the word filed as “to deliver (a paper or instrument) to the proper officer so that it is received by him to be kept on file, or among the records of his office,” other dictionaries, like Funk & Wagnall’s, had defined the  word “filed” as “to “present in the regular way, as to a judicial or legislative body, so that it shall go upon the records or into the order of business” and that this definition did not preclude “Filing” to include oral filings.

Justice Breyer went on to look at the time period in which the law was written and said that it was unlikely that in 1938 when much of the working force was illiterate, that Congress would have intended to require workers to write out their complaints.   This is particularly so, he noted, when FDR, who championed the Act, stated publicly that it was to protect “the poorest of those who toil in the factories.”  Finally, Breyer found that limiting the FLSA to written complaints would go against the intended purpose of the Act and would limit the use of informal grievance procedures, hotlines and other methods of orally reporting problems to form a basis for claims under the Act.   The Court then sought to defined the nature of the complaint that would fit under the FLSA:

To fall within the scope of the antiretaliation provision, a complaint 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 statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.

Not surprisingly, the Dynamic Duo of Justices Scalia and Thomas dissented but on an issue  entirely different than the one Justice Breyer wrote about. They felt that the issue was whether the word “complaint” meant “complaint to an employer” or as they held “complaint to an agency.” The dissenters felt that the law was intended to protect those who had complained to the government about their conditions, not complained to their employer. Justice Scalia stated in a phrase only he would write in a Supreme Court opinion:

Surely the word “complaint” in this question must be assigned an implied addressee. It presumably does not include a complaint to Judge Judy.

He stated that the plain meaning and intent of the FLSA was to protect only those workers who complained to the government and faced retaliation because of it.  The majority ignored this argument saying that the employer had not raised it in its brief. So presumably, this argument may still be up for grabs in the next case on this issue before the Court. It is disappointing that he majority did not take the opportunity to decide the issue in this case rather than have to wait for the next one to come up before it.

This case is the latest in a series of blows for NY employers.  This year, new regulations went into effect that broadened the definition of “retaliation”  for example, to include mere threats of firing. Now this decision overturns the case of Lambert v. Genesee Hospital a case decided in 1993 by the Second Circuit, the federal appeals court that covers NY.  In Lambert, the Second Circuit specifically held that “filed any complaint” meant that a written complaint had to be filed.  This was also the law according to the 9th Circuit which governs California.

So now the two most populated states in the Union have had their employment law jurisprudence turned around.  Employers in those two circuits now need to be particularly careful to document every reason that they discharged an employee or that employee can argue that he was fired in retaliation for oral complaints made regarding his wage/hour conditions.  The Supreme Court’s broad definition of a complaint in this case makes it dangerous for employers to ignore this ruling. The complaint need only be detailed enough to  put employers on notice that the employee is griping about conditions covered by the FLSA. Any act taken that can be interpreted as retaliation can now result in a federal FLSA lawsuit.

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