Bad FLSA Retaliation Decision
Posted on July 2nd, 2009 in Uncategorized | No Comments »
The Seventh Circuit Court of Appeals recently issued a decision holding that an internal, verbal complaint by an employee to an employer does not give the employee protection from retaliation under the Fair Labor Standards Act (FLSA). See Kasten v. Saint-Gobain Performance Plastics Corp., 2009 WL 1838291 (7th Cir. June 29, 2009).
As an initial matter, the Seventh Circuit agreed with the Sixth Circuit (See Moore v. Freeman, 355 F.3d 558 (6th Cir.2004)) that an internal complaint will suffice as protected activity under the FLSA’s anti-retaliation provision. But the Seventh Circuit disagreed with the Sixth Circuit (See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992)) that a verbal complaint, as opposed to a written complaint, would give rise to protection from retaliation.
The Seventh Circuit argued that its decision was based on the statutory language of the FLSA’s anti-retaliation provision, which prohibits “discharg[ing] … any employee because such employee has filed any complaint….” See 29 U.S.C. § 215(a)(3). The Seventh Circuit interpreted the phrase “filed any complaint” as requiring a written complaint, rather an a purely verbal complaint.
This is a bad decision for employees in the Seventh Circuit, which is comprised of the states of Illinois, Wisconsin and Indiana. In these states, an employee who verbally complains to management about his company’s failure to properly pay overtime is unprotected from retaliation. Most employees generally lodge verbal complaints before reducing the complaint to writing. In the Seventh Circuit, failure to complain, for example, about an illegal overtime scheme in writing will not give an employee protection from retaliation.
In my opinion, the statutory language of the FLSA’s anti-retaliation provision is less than clear, i.e., ambiguous, and would seem to encompass a verbal complaint. Further, the remedial nature of the FLSA would also seem to require that a verbal complaint would give rise to protection from retaliation.
Fortunately, the law in the Sixth Circuit is not as harsh.