High Court to Review Whether Retaliation for Verbal Complaints is Protected

March 24, 2010 (PLANSPONSOR.com) – The U.S. Supreme Court has agreed to review a federal appellate court's decision that "unwritten purely verbal complaints" are not protected from employer retaliation in the Fair Labor Standards Act (FLSA).

Last year, the 7th U.S. Circuit Court of Appeals affirmed a lower court’s decision that Saint-Gobain Performance Plastics hadn’t retaliated against Kevin Kasten under the FLSA when it fired him after he failed repeatedly to comply with policies for punching in and out on a time clock (see Retaliation for Verbal Complaints not Protected under FLSA). Kasten alleged that the company retaliated against him for complaining verbally to supervisors on many occasions that the placement of the clock was illegal because it didn’t allow workers to be paid for time spent donning and doffing protective work clothing.      

According to the Society for Human Resource Management, Section 215(a)(3) of the FLSA provides in relevant part that it is unlawful for any person “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint” under the law. The appellate court held that while intra-company complaints that are not formally filed with any judicial or administrative body are protected activity, unwritten verbal complaints are not.       

The court noted that analogous provisions in other statutes, including Title VII and the Age Discrimination in Employment Act, forbid employers from retaliating against any employee who “has opposed any practice” that is unlawful under the statutes, and this broader phrase does not require a “filing” and has been interpreted to protect verbal complaints.       

However, SHRM said the court concluded that the dictionary definition and common understanding of “to file,” “connotes the use of a writing.”      

According to SHRM, the 4th Circuit has also found that verbal complaints are not protected activity under the FLSA’s anti-retaliation provision, but the 6th, 8th, and 11th Circuits have ruled that such complaints are protected.