Retaliation for Verbal Complaints not Protected under FLSA

October 16, 2009 ( - The 7th U.S. Circuit Court of Appeals has let stand its previous decision that "unwritten purely verbal complaints" are not protected from employer retaliation in the Fair Labor Standards Act (FLSA).

Declining to hear the case Kasten v. Saint-Gobain Performance Plastics Corp. en banc, the panel also disregarded a Department of Labor amicus brief on Kasten’s behalf, which urged the court to read the phrase “to file [complaints]” broadly as “to submit,” the National Law Journal reports.   Three judges dissented, saying their colleagues were wrong not to hear the case because the decision departs from other circuits’ decisions and “the long-standing view of the Department of Labor,” according to the news account.

Last year U.S. District Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin dismissed the lawsuit by Kevin Kasten, an hourly production worker, ruling that Saint-Gobain Performance Plastics hadn’t retaliated under the FLSA when it fired him after he failed repeatedly to comply with policies for punching in and out on a time clock. 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.

The 7th Circuit affirmed the lower court ruling.