Tuesday, March 22, 2011

Supreme Court Rules that Oral Complaint Can Support FLSA Retaliation Claim

ScotusUpdate (PS): Just a few interesting notes to add here to Rick's post. 

First, Mr. Kasten is the father of one of my students, Lucas, here at Marquette University Law School. Lucas is very happy this morning.

Second, Richard Moberly (Nebraska) points out that retaliation plaintiffs are now 7 for 7 at the United States Supreme Court since the Court's Jackson decision in 2005. 

Finally, Richard points out that the decision in Kasten is consistent with his theory that these retaltion cases are all just about law enforcement for the Court. See Richard's recent law review piece in the Case Western Law Review article - The Supreme Court's Antiretaliation Principle - where he elaborates on this point. As for Kasten, there are some passages in that decision that seem to confirm this view that antiretaliation provisions will be interpreted broadly because they are vital to the enforcement scheme for the statute.


The U.S. Cupreme Court has just ruled, 6-2, that the Fair Labor Standards Act's anti-retaliation provision applies to oral as well as written complaints.  The statutory language prohibits employers from discharging "any employee because such employee has filed any complaint" alleging a violation of" the statute.  The Majority (Breyer) held that the text of the statute did not resolve the issue, so the Court looked other sources of authority such as the FLSA's basic objectives, an interpretation by the Secretary of Labor, and consistency with the interpretation of the National Labor Relations Act.  The dissent (Scalia, Thomas) argued that the FLSA's retaliation provision does not cover complaints to the employer but only complaints to a court or government agency.

The case is Kasten v. Saint-Gobain Performance Plastics.

Hat tip: Ross Runkel.



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It's funny, in many recent past cases when the Sup.Ct. has unexpectedly ruled for employment plaintiffs, it's been Scalia or Thomas saying "plain text says you have a claim" -- essentially, a fair textual reading of the broadly worded employment statutes undercuts conservative circuits' anti-plaintiff doctrines. This is different: the Court went a lot further, arguably rejecting the narrower reading a textualist approach would yield, instead construing the statute more broadly based on legislative purpose. Surprised Roberts/Alito/Kennedy came along for that ride!

Posted by: Scott Moss | Mar 22, 2011 8:37:33 PM

This decision is much less pro-plaintiff than reports suggest. The Court inexplicably ducked the real issue in the case -- whether the statute protects workers who complain to their employer rather than to the government. I think this is a pretty empty win for workers -- if the DOL acts on a worker's oral complaint, it seems self-evident that the worker would be protected from retaliation. The harder question, with much greater real-world implications, is whether a worker will be protected from retaliation if, like Kasten, she tells her employer that its practice violates the FLSA.

Posted by: Andrew Strom | Mar 23, 2011 6:50:22 AM

And congratulations to Prof. Schnapper (Univ. of Washington) who argued Kasten and was in the Court to hear the decision as he prepared to argue Guarnieri

Posted by: Wild Bill | Mar 24, 2011 6:01:57 AM

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