U.S. Supreme Court Rules in Favor of Employees --“any complaint” includes An Oral Complaint Is Sufficient to be Protective Activity
By Glenn C. McGovern, Attorney Metairie, La.
There have been mixed results when the state and federal courts have dealt with the issue of what is required to file a employment complaint in order for the complaining employee to obtain protected activity status. Some courts have held a written complaint and even a sworn EEOC complaint is required to be filed before the employee is protected from retaliation. Finally the U.S. Supreme Court stated in no uncertain terms this issue is resolved in favor of employees by just filing mere oral complaint to a supervisor without the necessity of filing a written complaint.
The effects of Kasten will be far reaching in a wide range of employment and whistleblower cases.
Plaintiff attorneys were by and large reluctant to take employee retaliation cases and especially ones under the Occupational Safety and Health Act, which has very tight time limit reporting requirements. The Court's ruling on the validity of oral complaints should have a positive effect on helping employees obtain legal counsel.
The Supreme Court issued a landmark 6-2 opinion on March 22, 2011, in Kasten v. Saint-Globain Performance Plastics Corp. No. 09-834. The court held that for the purposes of invoking the retaliation protection under FLSA a "complaint" might be made either in writing or orally. The employer tried to argue unsuccessfully that because the statue used the phrase "filed a complaint", oral complaints were not protected and did not have protection against retaliation.
This case is a great gift to employees whose protection from retaliation will not be at risk due to hyper-technical application of an employer's internal formal complaint mechanism.
Kasten alleged that he was discharged in retaliation for making oral complaints to his supervisors that the employer's location of time clocks that employees had to clock in with violated the Fair Labor Standards Act (FSLA). The FLSA Act's provisions contain an anti-retaliation provision that prohibits employers " to discharge...any employee because such employee has filed any complaint" alleging a violation of the FLSA.
The Court did not look to the text of the Act alone. The Court looked to other factors: the FSLA basic objectives, interpretation by the Secretary of Labor, consistency with other decisions of the National Labor Relations Act and even EEOC Compliance Manuals.
The author of the dissent Justice Scalia with Justice Thomas joining, wrote that the FSLA's retaliation provision does not cover complaints to the employer at all, and covers only complaints to a court or government agency. Justice Kagan did not participate in the vote.
Kasten will have a much broader impact than just in FSLA cases
The only requirement for such a complaint under Kasten according to Justice Breyer is that:
"To fall within the scope of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it. This standard can be met, however, by oral complaints, as well as written ones."
It is apparent from reading the decision that the Court intended to paint with a broad stroke. Justice Breyer wrote,
"Why could Congress want to limit the enforcement? scheme's effectiveness by inhibiting the use of the Act's complaint procedure by those who would find It difficult to reduce their complaints to writing..."
The Court reasoned that even if "filed", considered alone, might suggest a narrow interpretation limited to writings, "any compliant" suggest a broad interpretation that would include an oral complaint.
The Court stated:
"Since "filed any complaint" lends itself to the broader, "oral" interpretation, the use of broader language in other statues' anti-retaliation provisions does not indicate that Congress did or did not intend to leave oral grievances unprotected here. Because the text, taken alone, might or might not encompass oral complaints, the Court must look further.... A narrow Interpretation would undermine the Act's basic objective, which is to prohibit "Labor conditions detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency, and general Well being of workers, 29 U.S.C. §202(a)."
Even more interesting is the Court's rational in analyzing what other agencies viewed regarding oral complaints. The Court noted the Secretary of Labor had consistently held the view that "filed any complaint" covers both oral and written complaints. The Court looked to the Equal Employment Opportunity Commission and it reviewed its EEOC Compliance Manual and in the EEOC multiple briefs that oral complaints were sufficient to invoke protective activity protections. It is clear the days of hyper-technical defenses regarding an employer's internal formal complaint mechanism are dead with this decision:
"Limiting the scope to written complaints could prevent Government agencies from using hotlines, interviews, and other oral methods to receive complaints. And insofar as the provisions covers complaints made to employers, a limiting reading would discourage using informal workplace grievance procedures to secure compliance with the Act."
The Court also looked to NLRB anti-retaliation provisions that held workers are protected for just participating in an investigation.
The use of hotlines by employers and federal agencies has proliferated. Employers and government agencies promote hotlines so thus employees have perceived they when they use such easier oral hotline methods they are confidential and protected. In the past these hotlines could be a trap that employees widely used instead of written formal complaints. Now oral complaints clearly are protected activity and written complaints are not required for protection of employees in the workplace against retaliation.
As a practical pointer, it is still best to advise employees to file a written complaint by fax or certified mail to have tangible proof of service rather than get into as swearing match over the contents, timing and deliver of a mere oral complaint.
