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The "Write" Way to Complain?

It is autumn once again, and with it comes new seasons for the NFL, NBA, NHL and, of course, the Supreme Court. Granted, excitement over the new term may not quite reach the same level as a Lakers-Heat game or a Jets-Patriots rivalry, but the new term does have a lot to offer the business community, starting with a case that was argued in October: Kasten v. Saint-Gobain Performance Plastics Corp.

The question presented in Kasten is whether the anti-retaliation provision of the Fair Labor Standards Act (FLSA) can be triggered by an internal, intra-company oral complaint. The issue is undoubtedly significant to employers covered by the FLSA (and to their in-house counsel), as the Court's decision may require those employers to modify their employee training programs, complaint processing procedures and other FLSA compliance practices.

The respondent in Kasten is a manufacturer that requires its employees to swipe a time card to record when they are on and off duty. The respondent repeatedly warned the petitioner, one of its employees, that he was violating the time card policy and that he was at risk of being terminated. The petitioner, in turn, repeatedly protested orally that the time clocks were improperly located, depriving employees of pay for time they spend donning and doffing their work gear. He told various supervisors that the positions of the time clocks were illegal and that he was considering bringing a lawsuit. Ultimately, the clocks were moved and the petitioner was terminated.

The FLSA's anti-retaliation provision states, 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 or instituted or caused to be instituted any proceeding under or related to this chapter." 29 U.S.C. ? 215(a)(3). The petitioner claimed that he "filed" a complaint when he lodged oral complaints with his supervisors. The respondent argued (1) that the statute only protects complaints submitted to the government, and (2) even if the anti-retaliation provision covers internal complaints, an employee must file a written, rather than oral, complaint to earn protection.

The 7th Circuit agreed with petitioner and a number of other circuits on the first question, holding that "the plain language of the statute indicates that internal, intracompany complaints are protected." Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838 (7th Cir. 2009). But on the second question, the court held that "unwritten, purely verbal complaints are not protected activity."

How will the Supreme Court rule on these questions? We should be careful about attempting to glean too much from oral argument transcripts, but the Justices' questions and comments may provide us with some insight.

Most of the Justices appeared uncomfortable with the breadth of the petitioner's proposed rule, which is that any oral complaint to an employer, under virtually any circumstances, would qualify for FLSA protection. Justice Alito reflected his uneasiness in a hypothetical in which a supervisor is tending to an injured employee when another employee passes by and complains about an unrelated employer practice. Should that constitute a "filed" complaint? Justice Sotomayor challenged petitioner with a hypothetical involving an employee's oral complaint at a cocktail party. Justices Scalia, Kennedy, and Alito expressed their view that "filed," in everyday parlance, does not refer to an oral communication. (Justice Kennedy made the point best in teasing petitioner's counsel: "I would like to go back to the question Justice Scalia filed just earlier.") And Chief Justice Roberts and Justice Alito recognized the thorny factual issues that would arise under the petitioner's rule, including disputes about whether an employee in fact orally communicated, the content of such a communication, and whether the language of the oral communication qualified as a "complaint."

But Justice Scalia appeared willing to embrace a rule that allowed oral complaints to the government, but not to private employers. Justice Breyer, on the other hand, sought suggestions for "safeguards" that would invite oral complaints to employers, so long as there was sufficient formality--formality of the type seen in formal labor grievance procedures in a unionized setting--that would clearly put the employer on notice that a complaint was being "filed." And Justice Ginsburg asked several challenging questions to respondent's counsel, perhaps indicating her uneasiness with a rule that would always require written complaints.

Judging from the transcript, it seems possible that we may see a split along familiar lines in Kasten. Fortunately for employers, it seems that even those Justices inclined to allow oral complaints will require some sort of safeguards. But, as always, we will have to wait for a decision to know what the final rule will be. Stay tuned.

Read Matthew Ingber's previous column. Read Matthew Ingber's next column.

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Matthew Ingber

Matthew Ingber is a litigation partner at Mayer Brown.

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