By: Josh Seidman
Following the Supreme Court’s recent decision in Kasten, the scope of the statutory term “filed any complaint” under the FLSA’s antiretaliation provision, 29 U.S.C. § 215(a)(3), was expanded to include both written and oral complaints. As a result, an employee’s oral complaints to an employer will generally fall within the umbrella of FLSA section 215(a)(3) as long as the complaints are “sufficiently clear and detailed for a reasonable employer to understand [them]” as a declaration that the employee’s protected statutory rights have been offended. The Court based its holding in Kasten on a variety of factors such as a textual analysis of the key FLSA provisions, dictionary definitions and other relevant sources, and an analysis of various functional considerations regarding the FLSA’s purpose and implementation.
Summary of Kasten:
Kasten effectively expanded the coverage of the FLSA’s antiretaliation provision to include employee oral and written complaints of a FLSA violation. See Kasten, 131 S.Ct. at 1327, 1330. The Kasten decision evolved from a dispute between an individual and his former employer over whether the location of the former employer’s time clocks prevented the employees from being compensated for the time they spent donning and doffing protective clothing. See id. at 1329. Yet, the real issue in Kasten was not the location of the time clocks, but rather whether the employee’s various oral complaints to his employer about the time clocks’ location fell within the statutory phrase “filed any complaint” under the FLSA. 29 U.S.C. § 215(a)(3).
To resolve the issue, the Supreme Court first conducted a textual analysis of the controversial phrase. See id. at 1327-28, 1331-33. Since the actual FLSA text did not provide the Court with any guidance, the Court looked to a combination of dictionary definitions, statutory language, case law, and federal regulations to determine the meaning of the word “filed.” The Court noted dozens of examples from the various sources indicating that “legislators, administrators, and judges have all sometimes used the word ‘file’ in conjunction with oral statements.” The Court then turned its attention to the remainder of the disputed phrase, “any complaint,” which it used to broaden the meaning of the initial word “filed” to include oral complaints. Overall, the Court found a textual analysis, without more, was insufficient to resolve the dispute at hand and therefore an additional analysis of several other functional considerations was necessary.
One of the primary functional considerations that led the Court to ultimately rule in favor of the employee was the FLSA’s basic objectives. In general, the FLSA requires employers to meet certain substantive requirements regarding wages, hours, and overtime in order to prevent employers from adopting work conditions that would be “detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” The Court noted that, in large part, FLSA standards are maintained because of complaints received by the Department of Labor from employees who are looking to remedy an alleged FLSA violation. The Court reasoned Congress would not have wanted to restrict the phrase “filed any complaint” to mean only written complaints because doing so would consequentially hinder the overall enforcement of FLSA standards. Moreover, the Court noted that adopting a requirement that all employee complaints be made in writing would place an unnecessary and unwanted burden on workers who are “illiterate, less educated, or overworked.”
With these functional considerations in mind, the Court concluded that oral complaints are generally permissible under the FLSA’s antiretaliation provision as long as an employee’s oral complaint puts the employer on notice about a possible FLSA violation and is “sufficiently clear and detailed for a reasonable employer to understand it.” See id. at 1335.
Effects of Kasten:
Kasten abrogated the 1993 Second Circuit case, Lambert v. Genesee Hosp., which held that only formal, i.e. written, complaints were protected by FLSA § 215(a)(3). Additionally, it is important to point out Kasten can largely be viewed as a victory for employees who are engaged in disputes with their employers over FLSA issues. First, Kasten gave potentially injured employees another avenue – filing oral complaints – through which to bring lawsuits against an employer. Moreover, Kasten added a novel layer of ambiguity, namely at what point does an utterance of workplace displeasure become a filed complaint for FLSA antiretaliation purposes, that employers must find ways to prepare for.
Perhaps the most important development emerging from Kasten involves an apparent circuit split regarding who the aggrieved employee must make his or her written or oral complaint to, the employer or the Government. In Kasten, the Court declined to resolve this issue, stating that “[r]esolution of the Government/private employer question is not a ‘predicate to an intelligent resolution’ of the oral/written question that we granted certiorari to decide.”
In Lambert, the Second Circuit ruled that an employee does not successfully filed a complaint under the FLSA’s antiretaliation provision if the complaint was made to a supervisor. Lambert, 10 F. 3d at 55. Conversely, the remaining federal circuits, except for the Fourth Circuit, have ruled that the FLSA antiretaliation provision covers intra-employer complaints. For instance, in the 1989 Eleventh Circuit case, E.E.O.C. v. White & Son Enterprises, the court held “that the unofficial complaints expressed by the women to their employer about unequal pay constitute an assertion of rights protected under the [FLSA].”
Somewhere in the middle of the two views expressed in the preceding paragraph lies the opinion of the Fourth Circuit, which it outlined in January 2012 decision Minor v. Bostwick Laboratories, Inc. In Minor, the Fourth Circuit held that the employee’s verbal complaints to the company’s chief operating officer regarding potential FLSA violations were sufficient for § 215(a)(3) protection. However, the Fourth Circuit clearly stated that its “holding that intracompany complaints may constitute ‘fil[ing] any complaint’ under § 215(a)(3) does not mean that every instance of an employee ‘letting off steam’ to his employer constitutes protected activity.” The Minor court went on to explain that the reason the employee’s complaint was sufficient here was because the employee raised “her concerns regarding FLSA violations to the chief operating officer of her company in a meeting specifically called for that purpose.” According to the Fourth Circuit, this type of complaint is clear enough to put a reasonable employer on notice that the employee has a dispute over a potential FLSA issue.
Several conclusions can be derived from the Supreme Court’s holding in Kasten and the subsequent circuit split involving who the employee must file his or her complaint with in order for the complaint to be covered by FLSA § 215(a)(3). First and foremost, employers can no longer argue that employees who only make oral complaints about potential FLSA violations are not covered by the FLSA’s antiretaliation provision and employers should not disregard or brush off employee complaints about wages, hours, overtime or any other subject that falls within the FLSA’s general scope of coverage.
The second important conclusion is that, following Kasten and Minor, employers are not completely without a leg to stand on in terms of defending themselves from employee oral complaints under § 215(a)(3). For instance, a potentially strong argument available to employers involved in a § 215(a)(3) dispute is that the employee’s oral complaint lacked the requisite degree of formality and thus was insufficient to put the employer on notice of the employee’s grievance. Consider an employee who makes an oral complaint about improper employer practices regarding minimum wage or overtime payment to her supervisor at the water cooler or in the bathroom. In such a circumstance, a court will likely find that the complaint was insufficient to “put the employer on notice” of the employee’s FLSA grievance. See Kasten, at 1335. Yet, if the employee makes her oral complaint in her supervisor’s office or at a scheduled meeting, as was the case in Minor, then a court will likely find in favor of the employee and hold that the employee’s complaint is covered under § 215(a)(3). Therefore, in order to appropriately advise clients on whether she has a claim against her former employer for violating the FLSA’s antiretaliation provision, it is necessary to know more details about where and under what circumstances the client complained to her supervisors about the FLSA issues.
The third notable conclusion stems from the circuit split. Until the Supreme Court steps in and resolves whether an employee must make his or her complaint about an FLSA violation to the employer or the Government, both employers and employees must be aware of what the governing law is in the various jurisdictions and file their cases accordingly.
 Kasten v. Saint Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011).
 Id. at 1334-35.
 See id. at 1327-28.
 See id. at 1327, 1331-32.
 Id. at 1331.
 See id. at 1332.
 See id. at 1333.
 See id.
 29 U.S.C. § 202(a); Kasten, 131 S.Ct. at 1333.
 See Kasten, 131 S. Ct. at 1333.
 See id.
 Id. at 1333-34.
 See Lambert v. Genesee Hosp., 10 F. 3d 46, 55 (2d Cir. 1993).
 Kasten, at 1336 (quoting Ohio v. Robinette, 519 U.S. 33, 38 (1996)).
 E.E.O.C. v. White & Son Enterprises, 810 F. 2d 1006, 1011 (11th Cir. 1989). For a circuit-by-circuit breakdown of the relevant cases see Eric Schnapper, EMPLOYMENT CASES: SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 2010, ST001 ALI-ABA 143, 155-56, 158 (July 2011).
 Minor v. Bostwick Laboratories, Inc., No. 10-1258, 2012 WL 251926, at *1, 9 (4th Cir. Jan. 27, 2012).
 Id. at *9.