FLSA Anti-Retaliation Provision Protects Verbal Complaints

/ 24.Mar, 2011
This term’s Supreme Court has dealt another wallop to employers, holding in Kasten v. Saint-Gobain Performance Plastics Corp., — S.Ct. –, 2011 WL 977061 (decided March 22, 2011), that an employee can maintain an action under the FLSA for retaliation after making oral complaints. The FLSA’s anti-retaliation provision protects employees who “filed any complaint.” 29 U.S.C. §215(a)(3). In determining that “filed any complaint” includes both oral and written complaints, the Supreme Court reviewed the text of the FLSA as well as the FLSA’s basic objectives, the Secretary of Labor’s interpretation and the National Labor Relations Act. The Court, in a 6-2 decision, determined that an oral statement can be “filed” (even though the traditional notion of the word “filed” is to record or maintain a written document). The Supreme Court noted that the circuit courts had been split as to whether an oral complaint about possible FLSA violations was sufficient to base a retaliation claim under the FLSA. The Supreme Court declined to comment on Saint Gobain’s alternate theory that the anti-retaliation provision only applied to complaints filed with the U.S. government – not to the private employer itself. The Supreme Court noted that the issue was not raised in the petition for certiorari and, therefore, would not be considered. The case arose from Kasten’s complaints about the location of the time clocks which employees were required to use to punch in and out of work. He complained to company officials that the location of the time clocks prohibited employees from being paid for donning and doffing work-related protective gear. Kasten claimed that he was terminated for complaining about this issue.  The Supreme Court reversed the lower court’s grant of summary judgment to Saint Gobain based on the theory that the anti-retaliation provision did not include oral complaints, which judgment had been affirmed by the Seventh Circuit. This holding will undoubtedly result in more retaliation claims under the FLSA. From an employer’s perspective, it is imperative that supervisors and managers are trained to handle complaints about FLSA violations to ensure that the complaints are handled properly. Retaliation claims based on verbal complaints will be difficult to litigate because the cases will largely rest on issues of credibility. The opinion is available here. Link: If you need assistance with training or have questions about implementing a reporting procedure, please contact us at or