Yesterday, the U.S. Supreme Court heard oral arguments on this question: Does the Fair Labor Standards Act (FLSA) protect employees from retaliation when they verbally complain about wage and hour violations? My friend Jim Kaster of Minneapolis, Minnesota (pictured) argued the case for the employee, Kevin Kasten. Kasten worked for the Saint Gobain Performance Plastics Corporation from October 2003 to December 11, 2006. He worked at the manufacturing plant in Portage, Wisconsin. The chemicals employees use requires them to wear personal protective equipment (PPE). However, the company positioned the time clocks behind the locker rooms where employees are required to put on and take off their PPE (donning and doffing). That way, the company evaded the duty to pay employees for this required work. When the company ran the operations so that the time clocks would show 40 hour work weeks, the employees lost out on as much as 2.5 hours of overtime each week.
Saint Gobain maintains an "ethics" policy that requires employees to report all violations to their supervisors. (In my experience, companies that do this often use the policy to punish whistleblowers for not raising their concerns fast enough, or through the right channels; enlightened organizations recognize that employees should be protected whenever and however they raise their ethical concerns.) For three months through the fall of 2006, Kasten complained about the location of the time clocks. He told his supervisor and other managers about how the law prohibited the company from keeping employees from recording their donning and doffing time. He told them about other companies that were sued and lost. He told management they would lose, and that they should move the time clocks so they would be before the locker rooms. The company subjected Kasten to close supervision, disciplining him for conduct that had never been a problem during Kasten's prior three years of employment, and was not a problem for other employees. Finally, on December 11, 2006, the company moved the time clocks. That same day, they fired Kasten.
Saint Gobain eventually settled a class-action lawsuit for $1,425,000. However, the district court dismissed Kasten's retaliation claim, holding that FLSA only protects written complaints about violations. The Seventh Circuit U.S. Court of Appeals affirmed, recognizing that its decision was different from that of other courts, and of the U.S. Department of Labor.
The U.S. Supreme Court has now posted its transcript of yesterday's oral argument. Kaster began by telling the Court, "When Kevin Kasten told his employer that the location of the time clocks was illegal and that if they were taken to the court they would lose, he filed any complaint within the meaning of the 215(a)(3) under the Fair Labor Standards Act, because filing includes an oral communication, because "any" means any, which includes formal or informal, written or unwritten communications." He added that, "the act is not to be interpreted in a narrow, grudging fashion." Justice Alito then began a line of questioning to test how minimal a complaint could be and still be protected. This is disappointing. The purpose of the law is not served by examining the quanta of employee complaints. It is to prevent the employer's retaliation. If the employer chooses to retaliate against the most minimal complaint -- that would have an even greater deterrent effect than retaliating against formal complaints. The Supreme Court got it right in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67-68 (2006) when it held that actions that deter other employees from making complaints are sufficiently adverse to be the basis of a retaliation lawsuit.
"Unfortunately, the justices were not focused on what should have been the core concerns, which were well addresses in plaintiff’s and amici’s brief," said attorney Danny Katz of Silver Spring, Maryland, who attended the argument.
The company's lawyer, Carter Phillips, also got tough questions. Justice Ginsburg asked him, "I thought that the whole idea of this statute is to protect the workers, and I would like you to address particularly the amici's point, that this statute in 1938 affected people -- many were illiterate, they couldn't write a complaint, many were immigrants who weren't familiar with the language, for that universe of people, wouldn't Congress have meant that all complaints are okay?" She persisted, "wouldn't there be every reason to want the employee to complain first to the employer rather than making a Federal case out of it by complaining to a Government agency?" Phillips answered, "Intuitively, I don't disagree with that, Justice Ginsburg, but we have to go, again: What was the purpose of this particular statute?"
Hopefully, the Supreme Court' will be focused on that purpose when they write their decision. Working people need protection from retaliation no matter how they "filed" their complaints. We can expect the Supreme Court's decision in the months ahead. Follow this link to the amicus brief of the National Employment Law Project, the National Employment Lawyers Association, Interfaith Worker Justice, the Southern Poverty Law Center, the United Food and Commercial Workers and other groups. Copies of the other briefs are available here.