Labor: Retaliation under the FLSA – Where do we stand?

Courts are likely to continue to broaden the scope of what is considered a filed complaint

The Supreme Court dramatically changed how employees may file complaints with their employers under the Fair Labor Standards Act (FLSA) last year in Kasten v. Saint-Gobain Performance Plastics Corp. Based on the statutory language, courts previously had routinely found that an employee must file a complaint in writing to be protected by the statute’s anti-retaliation provisions.

In Kasten, the Supreme Court held that an employee’s oral complaints to his employer, in compliance with the company’s internal grievance procedure, was “filed” within the meaning of the FLSA, and the complaint, therefore, entitled the employee to protection against retaliation. The court specifically declined to decide whether intra-company oral complaints, as opposed to complaints lodged with a court or government agency, are sufficient to trigger the statute’s protections, as this issue was not raised in the appeal.

However, the Southern District of New York has consistently held that Kasten does not disturb prior holdings that an employee’s internal complaint to his employer does not entitle him to FLSA protection, and only external complaints to an outside agency or lawsuit are protected. Also, in a decision made under state wage law, the Florida District Court of Appeals found in Alvarado v. Bayshore Grove Management., LLC that an employee’s oral complaint did not provide sufficient notice to invoke statutory protections when the employee told his employer that he “was not receiving the correct amount of pay since [his] time records were altered and/or falsified so as to avoid having to pay [him] overtime.”

The lower courts adopting the rule also have adopted the standard set by the Supreme Court that the complaints need not be in writing or made in any particular manner, but must have “some degree of formality” and must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

Contributing Author

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Wendy Voss

Wendy K. Voss is a partner with the Wilmington, Del. law firm of Potter Anderson & Corroon LLP. She focuses her practice in the areas...

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Contributing Author

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E. Chaney Hall

E. Chaney Hall is an associate with Potter Anderson & Corroon, and focuses her practice primarily on litigation in the Delaware state and federal courts, with...

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