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Supreme Court Agrees To Decide Whether The Fair Labor Standards Act’s Anti-Retaliation Provision Protects Employees Who Make Verbal Complaints

Posted March 23, 2010

In Kasten v. Saint-Gobain Performance Plastics Corp., the Seventh Circuit Court of Appeals held that oral complaints alone to an employer are not a protected activity under FLSA's anti-retaliation section, 29 U.S.C. § 215(a)(3).  This section provides that "it shall be unlawful for any person . . . 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 this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." The Court interpreted this language to mean that an employee had to physically file a paper or document for his complaint to be protected.

Although the Seventh Circuit denied rehearing en banc, three judges dissented, noting that the “filed any complaint” language at issue is found in other federal law anti-retaliation provisions, including the Occupational Safety and Health Act, Migrant and Seasonal Agricultural Worker Protection Act, Clean Water Act.  The Seventh Circuit’s decision is also contrary to many other circuit courts that have held that an oral complaint is protected under the FLSA.  
It will be interesting to see how the Supreme Court decides this case. On one hand, the plain language of the statute seems to compel the result reached by the Seventh Circuit. On the other hand, common sense dictates that an employee be protected for making verbal complaints about wage and hour violations. 
Until the Supreme Court decides this issue, employees are advised to present complaints about unpaid overtime or other wage and hour violations in writing.

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