Verbal Complaints Can Fall Within the Protection of the Fair Labor Standards Act's Anti-Retaliation Provision

Posted on April 5, 2011 by Michael N. Morea

On March 22, 2011, in Kasten v. Saint-Gobain Performance Plastics Corp., the United States Supreme Court held that an employee who lodges verbal complaints regarding alleged violations of the Fair Labor Standards Act of 1938, 29 U.S.C. §201 et seq. (“FLSA”), may be entitled to protection of the FLSA’s anti-retaliation provision. The Kasten decision is a boon to employees, but could create potential problems for employers.

The FLSA’s anti-retaliation provision prohibits an employer from discharging or discriminating against an employee “because such employee has filed any complaint or instituted any proceedings under or related to [the FSLA][.]” 29 U.S.C. §215(a)(3).  The Kasten Court was presented with the question as to whether “filed any complaint” includes oral as well as written complaints. In a 6-2 decision, the Court concluded that it did.

In Kasten, the plaintiff, Kevin Kasten (“Kasten”), sued his former employer, Saint-Gobain Performance Plastics Corp. (“Saint-Gobain”), alleging that he was terminated in violation of the FLSA’s anti-retaliation provision after he orally complained to Saint-Gobain’s management of alleged violations of the FLSA. Kasten complained internally in accordance with Saint-Gobain’s grievance resolution process. Saint-Gobain subsequently terminated Kasten, leading to the underlying lawsuit.

Even though the parties disputed the reason for Kasten’s termination, the district court granted summary judgment in favor of Saint-Gobain and dismissed the complaint, finding that the FLSA’s anti-retaliation provision did not protect oral complaints. The Seventh Circuit Court of Appeal, agreed and affirmed the grant of summary judgment.

The Supreme Court, however, held differently, resolving a conflict on this question among the Circuit Courts. The Court analyzed the meaning of “filed” and “any complaint,” and held that the FLSA includes oral complaints. In reaching this holding the Court considered dictionary definitions of the words in question, legislative intent, and the views of agencies such as the Department of Labor and the Equal Employment Opportunity Commission.

The Court appears to have left somewhat open the question of when an oral complaint will be deemed “filed” within the meaning of the FLSA. The Court did, however, note that “a ‘filing’ is a serious occasion, rather than a triviality”, and that the FLSA “contemplates some degree of formality” such that the employer receives fair notice of the complaint. The Court did not, however, expound upon the contours of such formality and notice, and these will likely be issues in future FLSA retaliation lawsuits.

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Now That Summer Has Arrived, Many New Jersey Employers Are Asking: What Are My Company's Obligations With Regard to Employing Child Labor?

Posted on June 28, 2010 by Steven I. Adler


The United States Department of Labor has just announced that it is raising fines for employers that illegally employ child workers. Under its new, tougher penalty structure, employers who illegally employ minors will face penalties of up to $11,000 per worker for each violation. When children work, the work must be age appropriate, safe and it must not interfere with their schooling.

No minor under the age of 18 may work in hazardous jobs. Similarly, no minor under the age of 16 may work in, about or in connection with, power driven machinery.

With regard to hours of employment, with limited exceptions, no minor under 18 may work more than six consecutive days in one week, more than 40 hours in one week or more than eight hours in a day. No minor between 16 and 18 may work before 6 a.m. or after 11 p.m. They may, however, work after 11 p.m. during school vacations and on days which do not precede a regularly scheduled school day, provided they have written permission from their guardian. Similarly, they may work in a seasonal amusement or restaurant after 11 p.m. and into the following day if they start their shift before 11 p.m. either during any regular school vacation period or on workdays which do not begin on a day which precedes a regularly scheduled school day. However, under no circumstances may a minor between 16 and 18 work after 3 a.m. or before 6 a.m. on a day which precedes a regularly scheduled school day.

With regard to breaks, no minor under the age of 18 may be employed or allowed to work for more than five continuous hours without at least a thirty (30) minute lunch break.

There are also special schedule posting and recordkeeping requirements for minors, and employers are subject to criminal penalties for violating either state or federal wage and hour laws relating to minors. Each day, and with respect to each minor, constitutes a separate offense. Finally, minors may sue employers in court for work related injuries, unlike adults who must bring a workers' compensation claim.

Considering that state wage and hour laws may differ, employers outside New Jersey need to consult their state's laws.
 

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