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FLSA retaliation ruling could impact other cases

By: S.C. Lawyers Weekly staff//April 8, 2011

FLSA retaliation ruling could impact other cases

By: S.C. Lawyers Weekly staff//April 8, 2011

By KIMBERLY ATKINS, Lawyers USA, The national sister paper of Lawyers Weekly

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The U.S. Supreme Court’s recent ruling that oral complaints about workplace conditions made to a company supervisor are covered by the anti-retaliation provision of the Fair Labor Standards Act has employment lawyers taking notice.

The decision in Kasten v. Saint-Gobain Performance Plastics Corp. not only clarifies the protections against retaliation in the FSLA, it could also apply to other statutes with similar wording.

Plaintiffs’ attorneys cheered the ruling, which is the latest in a series of employee wins in retaliation claims before the court.

“This decision has made it clear that the Supreme Court views employment law, and retaliation claims in particular, as a critical element in our nation’s landscape,” said Jeffrey S. Hynes, managing partner at Jeffrey S. Hynes & Associates in Wauwatosa, Wis. “The court seems determined to give effect to Congress’s intent [and] construing it in a way to maximize its impact in the American workplace.”

Employer-side lawyers said the ruling leaves some questions unanswered.

“The decision [says the employer] has to put an employer on fair notice. But what is fair notice?” asked Zeb-Michael Curtin, an attorney in the labor and employment practice in the Minneapolis office of Dorsey & Whitney. “There are people who say even a comment made to a supervisor around the water cooler might be fair notice. ‘Hey, I should be getting overtime.’ That could be tricky.”

The plaintiff in Kasten filed suit under FLSA’s anti-retaliation clause, which makes it unlawful for employers “to discharge or in any other manner to discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted in any proceeding under” the act.

The plaintiff claimed he was fired after making verbal complaints about workplace conditions. A federal district court granted summary judgment in favor of his employer on the grounds that the worker’s complaints were not written, and therefore not protected. The 7th Circuit affirmed.

But the Supreme Court granted certiorari and reversed.

“To fall within the scope of the anti-retaliation 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,” wrote Justice Stephen Breyer in the 6-2 majority decision. “This standard can be met, however, by oral complaints, as well as by written ones.”


Application beyond FLSA

In a statement, the Department of Labor called the ruling was “a major victory for workers” and said it would apply beyond the FLSA.

“This decision will also protect workers who make oral complaints under a variety of other whistleblower statutes administered by the Labor Department,” the statement said. The solicitor general, joined by the DOL and the Equal Employment Opportunity Commission, argued as amicus in support of the plaintiff in Kasten.

The DOL’s statement also noted that the decision protects worker with limited English skills who may have trouble filing a written complaint, a point echoed by some legal advocates.

“This decision is especially relevant to low-wage workers who suffer from unlawful conditions but don’t speak out due to fear of retaliation,” said Yungsuhn Park, staff attorney at the Asian Pacific American Legal Center in Los Angeles.

Curtin noted that other statutes, including OSHA, use the word “filed” in their anti-retaliation provisions. That, coupled with unanswered questions about what makes a complaint “sufficiently clear,” will likely mean an increase in litigation, he said.

“[The court] hasn’t really defined just when an oral complaint is good enough,” Curtin said. “I think that is where the fight is going to be.”

There could also be more suits from workers who may not otherwise have considered retaliation complaints.

“It opens the door for people who were fired for something else to say, ‘I told my manager in 2008 that I thought I wasn’t getting paid fairly,'” Curtin said. “Is that enough [for a retaliation claim]? That will be the litigation.”


‘Putting substance over form’

Plaintiffs’ attorneys say the ruling reflected the practical realities of the workplace.

“Employers do not typically have a hotline to legal counsel or the text of the statute in their pockets” when they make a complaint about workplace conditions, said Hynes, who is president of the Wisconsin Employment Lawyers Association.

He noted that case is consistent with other recent worker victories in retaliation cases before the court. In January, the court held in Thompson v. North American Stainless that a worker who was fired after his fiancée filed a discrimination charge against their employer could file a retaliation claim under Title VII.

Over the last five years, the court has broadened Title VII retaliation protections in Burlington Northern & Santa Fe Railway Co. v. White and Crawford v. Metropolitan Government of Nashville and Davidson County, and extended retaliation protection to complaints made under the Age Discrimination in Employment Act in Gomez-Perez v. Potter.

“The Supreme Court is putting substance over form here and getting to the core of why these laws were passed,” Hynes said.

Curtin, who co-authored a client alert for employers after the ruling was handed down, said that while most employers already take oral complaints of workplace violations seriously, the ruling provides an opportunity for companies to examine their policies.

“The best practice would be to treat all complaints seriously, whether they are oral or in writing,” Curtin said.

But the ruling does not represent a major sea change, he pointed out. Even the circuit split that existed before the Supreme Court’s ruling was fairly lopsided in favor of extending retaliation protection to oral complaints.

“It’s not like this decision was a lightning bolt,” Curtin said.

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