In a recent case, Kasten v. Saint-Gobain Performance Plastics Corp., the United States Supreme Court held that an employee who orally complains about not being paid overtime is protected from retaliation by his employer. Prior to this case, it was unclear--from a national perspective--as to whether oral (i.e., non-written complaints) were sufficient to rise to the level of protected activity to insulate an employee from retaliation by his or her employer. In Kasten, the U.S. Supreme Court resolved a split among the Federal Circuit Courts of Appeal. Previously, the Second and Tenth Circuits held informal complaints are not protected, while other Circuits explicitly or implicitly held that they are protected.
Kevin Kasten was an hourly employee who worked for Saint-Gobain Performance Plastics Corp. ("Saint-Gobain"). He complained to Saint-Gobain about how the timeclocks at work were located in an area that prevented employees from receiving credit for certain job-related activities performed "off the clock" (such as putting on and taking off work clothes). After winning a first lawsuit on the issue of not being properly compensated for time spent dressing and undressing, Kasten filed a second lawsuit, alleging he was fired for complaining about the location of the timeclocks. Kasten's second lawsuit was an anti-retaliation lawsuit under the Fair Labor Standards Act, which requires employers to pay certain employees at least minimum wage, as well as one and a half times the regular rate of pay for overtime hours (i.e., hours in excess of forty hours in a single workweek). Also, the FLSA's anti-retaliation provision forbids employers "to discharge... any employee because such employee has filed any complaint" alleging a violation of the FLSA. At issue before the Supreme Court was whether Kasten's oral (i.e., non-written) complaints were deemed to be "filed" within the meaning of the FLSA's anti-retaliation provision.
In broadly interpreting the meaning of the word "filed," the Supreme Court focused on the fact that the FLSA was passed during the Great Depression, at a time when Congress sought to protect workers (many of whom were illiterate, under educated, and/or overworked) from substandard working conditions and unfair reprisals by their employers. The Court reasoned that illiterate workers would not be able to effectively make a written complaint, and therefore, Congress must have intended for the FLSA to protect all manner of complaints, both written and oral. Given that historical context of the passage of the FLSA, and also taking into account the Department of Labor's consistent position on the issue, the Supreme Court held that both oral and written complaints are protected by the FLSA's anti-retaliation provision, and that employees cannot lawfully be fired for making such complaints.
Employees who feel like their minimum wage or overtime rights are being violated should be able to complain to their employer without fear of retaliation. However, just because the Kasten case found undocumented oral complaints to constitute protected activity does change the fact that written complaints are preferred and tend to carry more weight. In the event of litigation, the existence of a written complaint (i.e., in the form of an e-mail or letter) is nearly impossible for an employer to deny, while the existence of an oral complaint is often subject to a "he said/she said" scenario and could be disbelieved by a jury under certain circumstances.
In any event, before making a complaint, employees would be wise to contact a St. Louis overtime lawyer to determine their rights and learn the proper steps to take so that their job is legally protected.