Last week, the Supreme Court held in Kasten v. Saint-Gobain that the Fair Labor Standard Act’s (FLSA’s) antiretaliation provision protects both oral and written complaints. The FLSA creates employment rules regarding minimum wage, hours, and overtime pay. The antiretaliation provision makes it unlawful for employers: “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.” The only question the Court resolved was whether oral, as well as written, complaints constitute “fil[ing] any complaint.”
While it is helpful for employers to know that oral complaints “count,” the biggest unresolved question is whether internal complaints, that is complaints from the employee directly to a private employer, are afforded FLSA protection. The Supreme Court “state[d] no view” on the issue, leaving it to the lower courts to decide. Well, many lower courts have already decided. In those jurisdictions, I anticipate the pre-Kasten determinations will control as the Supreme Court expressly avoided the issue. But, what about courts that have yet to decide the issue?
I expect courts that have yet to rule on this issue will find that the FLSA protects internal complaints to private employers. Why? First, most courts that have considered the issue have held that internal complaints are protected. Second, it helps to look at how the Supreme Court defined “filed any complaint” in Kasten: “[A] complaint is ‘filed’ when ‘a reasonable, objective person would have understood the employee’ to have ‘put the employer on notice that [the] employee is asserting statutory rights under the [Act].’” I think it is pretty clear that an internal complaint meets this standard. In dissent, Justice Scalia likewise notes that although the majority claims to leave unanswered the question of whether internal complaints are covered: “[T]he opinion adopts a test for ‘filed any complaint’ that assumes a ‘yes’ answer.”
So, what is the bottom line for employers? Are internal complaints to private employers afforded antiretaliation protection under the FLSA?
1. Look for precedent from the lower courts in your jurisdiction on this issue. Kasten does nothing to overrule these decisions.
2. Predicting how courts will rule on an issue can never be done with certainty. That said, if you’re in a court that hasn’t ruled on the issue, I think chances are that internal complaints will be covered.
Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.