4-7-2011; Concluding our series of articles by Arik D. Hetue, J.D. taking a look at some of the recent rulings of the Supreme Court of The United States which point toward broad support for...

KC&A styles itself as a “one-stop shop” for employer defense needs. We have successfully defended IDHR suits in Illinois and Title VII suits in the Federal courts at very reasonable rates. In these discrimination settings, there are clearly defined paths for defendant employers to follow in order to limit their potential liability. Earlier this month, the Supreme Court of the United States decided a series of cases involving workers’ rights in the employment law setting. Last week we highlighted Staub v. Proctor Hospital, U.S. No. 09-400. this week we turn to Kasten v. Saint-Gobain Performance Plastics Corp which was decided on March 22, 2011.

Kasten v. Saint-Gobain Performance Plastics Corp, decided on March 22, 2011, dealt specifically with the Fair Labor Standards Act (FLSA), but its holding will apply more broadly in the field of retaliatory discharge and OSHA suits generally, as the language of the statutes are similar. Kasten was an employee in Saint-Gobain’s Portage, Wisconsin facility who received repeated warnings for violating a company policy requiring employees to clock in and out of work. He was eventually terminated for these infractions. Kasten subsequently filed suit alleging he was discharged in retaliation for making oral complaints to his supervisors regarding the location of the company’s time clocks in regard to preventing employees from recording their time spent “donning and doffing” protective gear. The fact that these complaints were oral was central to the case and to the holding, as the District court held internal company complaints could constitute protected activity within the meaning of the FLSA, but oral objections were not protected.  The Seventh Circuit affirmed and the Supreme Court took up the issue.

Of note is the now somewhat broad language of “filed any complaint” contained in the relevant portion of the FLSA. The Supreme Court essentially held this statutory text can include both oral and written complaints, and reversed the Seventh Circuit and remanded the case for further consideration in light of their holding. The Court focused on the facts surrounding the time of the passage of the FLSA, when a relatively high number of American workers were illiterate. Relying on this, the Court held the phrase “filed any complaint” to include oral complaints, and noted such an interpretation furthered the FLSA’s stated purpose of protecting workers. Also of significant was the fact agencies which enforce the FLSA have consistently interpreted “filed any complaint” to include oral complaints.

One striking item missing from the Court’s analysis was the issue of whether complaints made to private employers, rather than government agencies, are protected under the FLSA’s anti-retaliation provision.  This is striking mostly because the complaints at issue in Kasten were made only to a private employer! Always make sure to include the kitchen sink when preserving the issues on appeal - the Court found Saint-Gobain failed to raise the issue in its response to Kasten’s petition for certiorari. There is currently a circuit split on this issue, which may soon be heading back to the Supreme Court.

What does this mean for employers generally? The most important thing to take away from this holding is to pay attention to complaints and document them regardless of whether they are oral or written. As noted above, this holding will take effect in at least other OSHA settings, but generally, it is wise to look into any reports of any kind which may lead to litigation or grievance. If you do not yet have a policy of having oral complainants write out their complaints, it would be wise to do so – have them give a recorded statement while you are at it if you want to lock stories in. We would be happy to further discuss such issues with you via email, in person or over the phone, feel free to contact us regarding your investigation process!

This article was researched and written by Arik D. Hetue, J.D. If you have thoughts and comments, please send a reply to ahetue@keefe-law.com, or post them later today on the blog at www.keefe-law.com/blog.