Retaliation seems to be the new “go to” claim in employment law. For example, it formed the basis for more than one-third of all discrimination charges filed last year with the Equal Employment Opportunity Commission (“EEOC”), surpassing race discrimination as the most frequently filed claim. We may now be headed that way under the Fair Labor Standards Act (“FLSA”) as well.
In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011), the United States Supreme Court reviewed the claim of an employee who was fired after complaining that the company’s time clocks violated the FLSA because they were positioned in a way that prevented workers from being paid for time spent donning and doffing protective clothing. The Supreme Court upheld the claim, ruling that the FLSA’s anti-retaliation provision (which prohibits discharging or otherwise discriminating against an employee who has “filed any complaint”) applies to informal, oral complaints as well as more official, written reports. Therefore, what used to be viewed as mere griping about hours or compensation might now be viewed as protected whistleblower activity.
The Court noted that not every grumbling remark is a protected “complaint.” Instead, a complaint is “filed” only when “a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the FLSA.” Unfortunately, the Supreme Court declined to explain how to evaluate when a complaint meets this standard – that will have to wait further decisions by the lower courts.
Many people have asserted that anti-retaliation provisions should only apply to actual complaints filed with governmental entities. Unfortunately, the Supreme Court declined to address this issue because the litigants failed to raise it in the papers filed with the Court. The dissenting judges wrote (quite justifiably) that it made “little sense” to decide the formal vs. informal distinction if they are just going to rule in a future case that neither complaint is valid unless it is actually filed with a governmental agency.
Bottom Line
Right now, employers have to be careful when dealing with employees who have made any sort of complaint about practices that they claim are prohibited under the FLSA. Examples might include failing to give them adequate break time, not counting on-call hours as time worked for overtime, etc. Of course, all of this could be moot if future cases limit protection to complaints just to those that are actually “filed” with the government. We’ll be monitoring this for you.