By Edwin S. Hopson
The U.S. Supreme Court on March 22, 2011, issued its decision in Kasten v. Saint Gobain Performance Plastics Corp., 563 U.S. ____, No. 09-834 (2011) holding, in a 6 to 2 decision authored by Justice Breyer, that under the Fair Labor Standards Act (FLSA) anti-retaliation provision an oral complaint to a supervisor comes within the scope of 29 U. S. C. §215(a)(3), which forbids employers from discharging “any employee because such employee has filed any complaint” claiming a violation of the FLSA. Kasten had lost in the district and appellate courts which had found that the term “filed” required a written complaint. Justice Breyer, in a decision joined in by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Alito and Sotomayor (Justice Kagan took not part in the case), noted that the statutory language must be viewed in context and with the purpose of the law in mind. He also pointed out that a number of agencies allow oral “filings” and that the U.S. Department of Labor’s consistent interpretation of the provision included oral complaints as well as written ones. The issue of whether the complaint must be filed with the government in order to come within the anti-retaliation provision was expressly not decided by the court.
In dissent, Justice Scalia, joined by Justice Thomas, argued, among other things, that the complaint must be in writing to be consistence with the term “complaint” as used elsewhere in the FLSA. He also contends that it made no sense to decide the “oral versus written” question while side-stepping the question of who the addressee of the complaint should be, stating: “[i]t presumably does not include a complaint to Judge Judy.” Slip opinion, page 8.