The Fair Labor Standards Act (“FLSA”) provides a cause of action to an employee who suffers an adverse employment action “because such employee has filed any complaint” under the FLSA. 29 U.S.C. § 215(a)(3). On March 22, 2010, the Supreme Court granted certiorari in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, to decide whether an employee states a claim for retaliation under that provision based solely on an oral complaint made to the employer. The case is important to employers, both because the Court’s resolution of the issue will affect their potential liability for retaliation claims under the statute and because establishing and operating legally sufficient oral-complaint procedures could be very complex.

In Kasten, the plaintiff filed suit against his former employer under the FLSA after he was terminated for violating the employer’s time-clock-punching policy. The suit alleged that he was terminated in retaliation for his oral complaints, to supervisors and human resources personnel, that the placement of the time clock was illegal. The district court granted summary judgment to the employer, holding that, although intra-company written complaints could form the basis for a retaliation claim, oral complaints could not.

The Seventh Circuit affirmed. While acknowledging a division of authority on the issue, the court of appeals reasoned that the term “filed” implies a written complaint and that oral complaints therefore could not support a cause of action. Three judges dissented from the denial of rehearing en banc, arguing, among other things, that the court’s decision is inconsistent with the position of the Department of Labor.

Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on May 13, 2010, and amicus briefs in support of the respondent will be due on June 14, 2010. Any questions about the case should be directed to Robert P. Davis (+1 212 506 2455) in our New York office.

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