Email Barry Postman and Brian Rubenstein

RecentUnitedStatesSupremeCourtDecisionHoldsthatOralComplaintsMayConstituteProtected ActivityUnderthe Fair LaborStandardsAct(“FLSA”)

The Fair Labor Standards Act (“FLSA”) mandates wage, hour and overtime requirements that employers must follow, and prohibits em­ployers from retaliating against employees who engage in protected activity under the FLSA. More specifically, the FLSA’s anti-retaliation provision prohibits employers from taking adverse employment actions in retaliation for an employee engaging in protected activity, including but not limited to complaints about wages, overtime, classification as non-exempt or exempt, time clock requirements, or because the employee instituted or caused to be instituted any FLSA proceeding. Similar to retaliation claims under Title VII, the re­quired elements of a prima facie FLSA retaliation claim include: 1) plaintiff engaged in protected activity under the FLSA; 2) plaintiff sub­sequently suffered an adverse employment action; and 3) a causal connection existed between employee’s protected activity and the adverse action.

In the past, some courts, including the Seventh Circuit United States Court of Appeals (“Seventh Circuit”) that has jurisdiction over ap­peals from federal courts in Indiana, Wisconsin and Illinois, have held that oral complaints about alleged FLSA violations are not consid­ered protected activity under the FLSA’s anti-retaliation provision. Thus, if the employee did not submit a written complaint to the em­ployer about the alleged FLSA violation, then the employee could not establish that he or she engaged in protected activity under the FLSA which is necessary to establish the first element of a prime facie claim of retaliation. However, on March 22, 2011, this changed with the United States Supreme Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011).

In Kasten, the employee/plaintiff, Kevin Kasten, testified that he orally complained to his supervisor that the physical location of the time clocks prevented workers from receiving credit for time spent putting on and taking off their work-related protective gear and clothing, and that the placement of the time clocks was unlawful. The employer denied that Kasten made any significant complaints about the location of the time clocks. The district court entered summary judgment in the employer’s favor because it thought the FLSA did not protect oral complaints, and the Seventh Circuit affirmed the decision. Kasten appealed the decision to the United States Supreme Court based on a conflict among the Circuit Courts of Appeals regarding whether an oral complaint is protected activity under the FLSA. The Supreme Court held that both oral and written complaints alleging FLSA violations may be protected by the FLSA’s anti-retaliation provision, including but not limited to oral complaints relating to unpaid wages and overtime. For the oral complaint to be con­sidered protected activity, it must be sufficiently clear and detailed for a reasonable, objective person to understand that the employee is putting them on notice that the employee is asserting rights protected by the FLSA. The Supreme Court vacated the Seventh Circuit’s summary judgment, and remanded the case to the lower court to decide if Kasten’s oral complaint was sufficient to put his employer on notice that he was asserting rights protected by the FLSA.

Practical Significance in EPL Claims Handling

The ruling in Kasten will likely increase the number of unlawful retaliation cases under the FLSA nationwide because employees can create a question of fact as to whether they engaged in protected activity under the FLSA by testifying that they lodged an oral com­plaint. Employers who receive these oral complaints should document the complaint and take prompt action investigating and respond­ing to the complaint. Employers should also be aware that if an adverse employment action is taken soon after the oral complaint is made, the employee may file an FLSA retaliation claim. Therefore, the legitimate, non-retaliatory reason for the adverse employment action should be well documented to rebut Plaintiffs potential retaliation claim.


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For advice about a particular problem or situation, please contact an attorney of your choice.
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