On March 22, 2011, the United States Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp. that the Fair Labor Standards Act (FLSA) protects whistleblowers from retaliation when they make oral and not merely written complaints.

The Fair Labor Standards Act of 1938 (also known as the Wages and Hours Bill) was the first major workers' rights legislation in the United States.  The Act prohibited "oppressive child labor", established the minimum wage and "time-and-a-half-pay" for overtime in non-exempt jobs.  The Act also prohibited an employer from firing, demoting or taking other adverse action against an employee in retaliation for filing a complaint that the employer violated the FLSA.

In this case Kasten made an oral complaint to his employer Saint-Gobain that it violated FLSA requirements and alleged that Saint-Gobain then terminated him in retaliation for the complaint.

The Court's decision is a difficult one to understand.  The dispute below and the disagreement between circuit courts turned on two separate issues: whether FLSA's anti-retaliation protections extend to (1) oral complaints (as opposed to written ones), and (2) complaints made to the worker's employer (as opposed to Department of Labor, or another enforcement agency).

The Ninth Circuit Court of Appeal held in Lambert v. Ackerley, 180 F.3d 997, 1007 (CA9 1999) that FLSA's anti-retaliation provision does not cover "informal" complaints to supervisors, and curiously, the majority opinion dodges the question of whether an employee complaint alleging an FLSA violation made to the employer receives FLSA anti-retaliation protection.  Justice Breyer wrote that the court did not need to reach that question to decide the case.  And so the court's actual decision appears limited to whether an employee who makes an oral complaint to Department of Labor is entitled to FLSA anti-retaliation protection, although this case involved an employee who made an oral complaint to his employer.  The decision is also curious because it's not clear that an employee can easily make an oral complaint to the Department of Labor's wage and hour division.

The Court's decision delivered by Justice Steven Breyer noted that in 1938 many workers were illiterate and so it would be ironic to expect that Congress intended workers to be required to make written complaints before being protected.

Justice Breyer wrote that Congress' delegation of enforcement authority to a federal administrative agency suggests that the Court should give some weight to the agency's interpretation of the statute's meaning and the Secretary of Labor has consistently held that the words "filed any complaint" cover oral as well as written complaints.

Justice Breyer wrote that the anti-retaliation provisions were important because,

[The Act does not rely] upon continuing detailed federal supervision or inspection of payrolls but upon information and complaints received from employees seeking to vindicate rights claimed to have been denied.

Justice Scalia's dissent joined by Justice Thomas argued that the FLSA's anti-retaliation provision did not contemplate complaints employees make to employers at all, regardless of whether in writing or orally.  Rather, the statute protects workers who file complaints with the Department of Labor, an administrative law court or some other enforcement authority.  To bolster this position, Justice Scalia noted that in every place the Act uses the word "filed," it refers to a complaint initiated with the Department of Labor or some other enforcement authority.

Justice Scalia argued that employees were not free to sue for retaliation (no "private right of action") under the 1938 Act.  Congress added a private right of action to FLSA in 1977.  Before that only the Administrator of the Wage and Hour Division could enforce the Act's retaliation provision.  He noted that it seemed odd for the Act to protect an employee from retaliation for a complaint made to the employer, but required the employee to go to the Department of Labor's Administrator to punish the retaliation.

The majority opinion evaded the most important question using a technical rule.  The circuit split turned on whether FLSA protects a worker from retaliation who makes a complaint to his employer.  St. Gobain's response to the petition for certiorari did not specifically state this argument even though it did raise the argument in the courts below.  Supreme Court Rule 15.2 counsels that if a party does not raise an objection to a question presented to the court, the court may waive that argument even though it was raised in the courts below.

Justice Scalia explained that the Court's reliance on Rule 15.2 was a poor choice,

Surely the word 'complaint' in this question must be assigned an implied addressee.  It presumably does not include a complaint to Judge Judy.

After all of this, it appears that there remains a split in the circuits as to whether an employee who makes a complaint to his employer is afforded FLSA whistleblower protection.  Or perhaps there is not.

Read Kasten v. Saint-Gobain Performance Plastics Corp.,
Sup. Ct., 563 U.S. __ (2011), Slip Op. 09-834