Today, in Kasten v. Saint-Gobain Performance, the US Supreme Court clarified that employee complaints under the Fair Labor Standards Act (FLSA) need not be written in order to get the retaliation protections afforded under the Act.
The FLSA forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act, 29 U. S. C. §215(a)(3). The plaintiff in Kasten claimed that he was discharged because he orally complained to company officials that the placement of the timeclocks violated his rights under the FLSA. The defendant argued that the plaintiff could not maintain a claim for retaliation because he did not file any complaint with the Government. Disagreeing with the defendant, the Supreme Court held that the phrase “filed any complaint” used in the statute is broad enough to include the filing of oral complaints.
This decision resolved a split among the federal circuit courts, and is somewhat big news in New York (covered by the federal 2nd Circuit, which also covers Connecticut and Vermont) because it effectively overrules 18 years of precedent on this issue. See Lambert v. Genesee Hospital, 10 F. 3d 46, 55– 56 (CA2 1993) (antiretaliation provision does not cover informal complaints to supervisors). On the other hand, it may not be as big a change in New York as first thought because of what it did not change. That is, under Lambert, it is still law in New York that employees must file their complaint with the government. FLSA Complaints filed with their employer are still not protected under the retaliation provision.
What does this mean for employers? It depends on the precedent in their particular Circuit. In those Circuits where employee complaints to their employers were already protected, but only if they were written complaints, I recommend some training of HR and supervisory staff. In those Circuits where complaints have to be filed with the government (the 2nd Circuit), there is no practical impact in how employers/HR does business. This is because the ruling only affects how complaints are filed with the government. The Court specifically refused to decide the issue of whether a complaint needs to be filed with the government or whether filing it with the employer would suffice. Still, as noted in the dissenting opinion, the ruling implies that an oral complaint filed with the employer would suffice to trigger the retaliation provisions of FLSA. That remains to be seen.
However, even in the 2nd Circuit, I advise clients to take a cautious approach in cases that allow for it. Assuming the matter has no need for immediate action, I suggest that where a potential retaliation claim filed with the employer would have no merit, depending on the reason for the pending and unrelated decision to terminate the employee, prudent planning may sometimes mean postponing the decision, thus denying the employee a proximity argument that would otherwise have bolstered his merit-less potential retaliation claim. Why? proximity is typically the most compelling part of retaliation claims. If you can remove proximity from the equation, you may stop a retaliation law suit from even entering the employee’s mind. Afterall, winning a lawsuit may save the company money, but the real savings are in avoiding lawsuits to begin with. If your supervisors and/or HR are relying on Lambert, they likely will not conduct this sort of analysis, thus exposing the company to potential legal fees.
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