Earlier this week, the U.S. Supreme Court sided with the Sixth Circuit and resolved one of two Circuit splits involving interpretation of the Fair Labor Standards Act (“FLSA”), 52 Stat. 1060, 29 U.S.C. § 201 et seq., which sets forth rules governing minimum wages, maximum hours, and overtime pay.
The FLSA contains an anti-retaliation provision which provides that an employer may not “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 [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.” Id. at 215(a)(3) (emphasis added). The Sixth Circuit previously assumed without discussion that the statutory phrase “filed any complaint” includes oral as well as written complaints within its scope. See Moore v. Freeman (PDF), 355 F.3d 558, 562-63 (6th Cir. 2004). The Sixth Circuit’s interpretation has been followed by the Fifth, Eighth, Ninth, and Eleventh Circuits. By contrast, the Second, Fourth, and Seventh Circuits have held that unwritten complaints are not protected.
In Kasten v Saint-Gobain Performance Plastics Corp. (PDF), No. 09–834 (U.S. Sup. Ct. Mar. 22, 2011), the Supreme Court in an appeal from the Seventh Circuit resolved the Circuit split by siding with the Sixth Circuit’s view and holding that an oral complaint of a violation of the FLSA is protected conduct under the Act’s anti-retaliation provision. In a majority opinion written by Justice Breyer (who was joined by Justices Roberts, Kennedy, Ginsburg, Alito, and Sotomayor), the Court recognized that a narrow interpretation of the phrase “filed any complaint” would undermine the FLSA’s basic objectives, which includes prohibiting “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U. S. C. § 202(a).
At the same time, the Court in Kasten declined to resolve another Circuit split under the FLSA involving the question of whether the phrase “filed any complaint” encompasses internal complaints made to private employers or instead only protects complaints made with the government. The Sixth Circuit, along with the First, Third, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits, has held that internal complaints made to an employer are protected. The Second and Fourth Circuits, by contrast, have rejected that view. The Supreme Court did not address this issue on the grounds that it was not raised in the certiorari briefs and its resolution was not necessary to address the oral/written question at issue.