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SCOTUS to decide whether oral complaint is protected conduct under FLSA ant-retaliation provision
March 22, 2010 by Ross Runkel at LawMemo

Kasten v. Saint-Gobain Performance Plastics Corp (certiorari granted 03/22/2010)
[Details, briefs]

Kasten sued the employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed.

Kasten alleged that he was discharged in retaliation for making verbal complaints to his superiors that the employer's placement of time clocks violated the Fair Labor Standards Act (FLSA). The FLSA's anti-retaliation provision prohibits an employer from retaliating against an employee because the employee "has filed any complaint...." 29 USC Section 215(a)(3).

The 7th Circuit held that "any complaint" includes an employee's internal ("intra-company") complaint. However, the court also held that an employee does not "file" such a complaint in this context when he submits the complaint in purely unwritten form. The court reasoned, "the natural understanding of the phrase 'file any complaint' requires the submission of some writing to an employer, court, or administrative body."

The 7th Circuit denied a rehearing en banc. Three judges DISSENTED from the denial of a rehearing, saying that "The court has adopted a construction of the Fair Labor Standard Act's anti-retaliation provision that is unique among the circuits." "[T]he court has taken a position contrary to the longstanding view of the Department of Labor, departed from the holdings of other circuits, and interpreted the statutory language in a way that I believe is contrary to the understanding of Congress."

The US Supreme Court granted certiorari to review the 7th Circuit judgment. The Court will decide the following question:

"Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?"


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