Can I Be Fired For Making An Oral Complaint?

If the complaint is of a violation of the Fair Labor Standards Act ("FLSA"), the answer is "no."  That's what the U.S. Supreme Court held today in the case of Kasten v. Saint-Gobain Performance Plastics Corp.

Kevin Kasten complained to his bosses about the location of the time clock at work.  Specifically, he complained that the location prevented workers from getting paid for the time spent putting on and taking off their protective gear.  Under the FLSA, employees are required to be paid for such "donning and doffing" time.  Mr. Kasten complained to his supervisor, to HR, to his lead man and to his Operations Manager that he thought the location was illegal and the company would lose if it ever went to court.  When he was fired, Mr. Kasten sued under the FLSA's anti-retaliation provision, which makes it illegal "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ." under the FLSA.

Mr. Kasten's suit was tossed out of court, on the grounds that the FLSA's anti-retaliation only applies to written complaints.  The Seventh Circuit Court of Appeals in Chicago agreed, so he took it all the way up to the U.S. Supreme Court.  And won.  The court held, in a 6-2 decision (Justice Kagan did not participate), that the "filed any complaint" language includes oral as well as written complaints.

Justices Scalia and Thomas dissented (gee, there's a surprise).  In their view, Mr. Kasten should lose, not because his complaints were oral rather than written, but because they were made to the employer rather than to the government.  In their view, the only way a complaint can be "filed" is with the government.  The majority declined to reach this issue, so it remains an open question.  In my view, this narrow, restrictive view undermines the goals of the FLSA and unfairly punished employees who choose to take the lesser, and perhaps more reasonable, step of complaining internally before escalating to the point of calling the government.

Regardless of this open question, this case is a nice victory for workers.  We need more like it.