The EEOC has reported that it receives more charges of retaliation than any other type of employment discrimination charge, and that there are thousands of cases involving allegations of illegal retaliation filed every year.  Retaliation is often prohibited by statute, but the Supreme Court has expanded the scope of actionable retaliation lately, holding that there was a cause of action for retaliation even though the statute in question did not expressly cover the situation at issue.

The Fair Labor Standards Act (FLSA) prohibits discrimination against an employee “because such employee has filed any complaint” under the Act.  In Kasten v. Saint Gobain Performance Plastics Corp. (PDF), 563 U.S. ___ (2011), the U.S. Supreme Court held that, although there can be no retaliation if the employer is not on fair notice of the initial complaint, a complaint need not necessarily be in writing to trigger protection under the Act.

Kasten had complained about the placement of the time clocks between the area where required work clothing was donned and doffed and the work area, such that employees were not paid for the time they spent donning and doffing their work clothes.  The employer had a grievance system that allowed for oral complaints of violations of any law.  Kasten testified that he “raised a concern” with his lead operator, his shift supervisor, the human resources manager and the operations manager that  the placement of the time clocks was illegal, but he had not “filed” any sort of written “complaint.”

The District Court and the Seventh Circuit Court of Appeals both held that oral complaints are insufficient to trigger retaliation protection under the FLSA.  The Supreme Court reversed and remanded.  Justice Breyer, writing for the 6-2 majority, held that the Act requires only “fair notice” of a complaint, reasoning that “it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint,” and left it to lower courts to decide whether “Kasten will be able to satisfy the Act’s notice requirement” based on his oral grievance.

What steps can employers take in response to the Kasten decision?

• Employers are well advised to institute a formal grievance procedure and specify that the procedure is the appropriate way to put the employer on notice of any complaints. Raising grievances orally with low level supervisors then at least arguably may not be enough to trigger retaliation protection.
• Although many formal grievance procedures have an oral first step, employers would be wise to require writing early on in the process.  This has the advantage of identifying exactly what is being complained about so the initial complaint does not become inflated years later once a plaintiff’s lawyer gets involved.
• Employers should train their supervisors and managers to make Human Resources and upper management aware when employees complain about allegedly illegal activities. A complaint may at first appear to be mere griping, but it could be the basis for a lawsuit or even a union organizing campaign.