Returning to business after a recess, the U.S. Supreme Court accepts today certiorari in an FLSA case that may tell us something more about what that Court is thinking these days about statutory retaliation cases.
The Kasten case resulted in a decision by a panel of the Seventh Circuit (570 F.3d 834 (7th Cir. 2009)), that oral complaints alone to an employer are not a protected activity under FLSA’s anti-retaliation section, 29 U.S.C. § 215(a)(3). This section provides that “it shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The panel took the highlighted language to mean that the employee had to physically file a paper or document.
There judges dissented from denial of rehearing en banc (order of Oct. 15, 2009). They noted, among other things, that the “filed any complaint” language recurs in the anti-retaliation sections of other federal statutes (e.g., Occupational Safety and Health Act, Migrant and Seasonal Agricultural Worker Protection Act, Clean Water Act), so a narrow construction would portend a reduced field of protection for employees who complain orally, and who are fired before they can file a complaint. The Seventh Circuit in this case also staked out a position contrary to most circuits, which have otherwise held or assumed that an oral report is enough to trigger protection, one not necessarily compelled by the plain language of the statute: “Although I agree that the term ‘to file” often connotes (particularly for lawyers) the submission of a document, it is by no means out of the ordinary to read and hear the term used in conjunction with oral complaints; in that sense, ‘to file’ is used more broadly to signify the making of a report or the lodging of a protest.”
If the Court follows its own in lead in its unanimous decision from last term, Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009), it will give the statute a common-sense construction that safeguards employees’ rights to inquire or complaint about wage-and-hour violations. A decision affirming the Seventh Circuit’s construction, though seemingly unlikely, would reverberate in all federal-law retaliation cases.