In June, the Seventh Circuit Court of Appeals ruled that an employee could not bring a retaliation claim against his employer under the Fair Labor Standards Act because his complaints were verbal, not written. The court held that only written complaints are "protected activity" under the FLSA. This case, Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009), may be good news for employers facing FLSA retaliation claims.

The FLSA retaliation clause protects an employee who complains to his or her employer from adverse action by the employer. In Kasten, an employee at a Wisconsin plastics manufacturing plant was suspended, and later fired, for violating time clock policies. Prior to the suspension, the employee had allegedly verbally complained to his supervisors about the location of the time clocks, which he claimed prevented employees from being paid for time spent putting on and taking off protective gear. After he was fired, the employee filed a FLSA retaliation claim against the employer alleging that he had been fired in retaliation for the alleged verbal complaints. The Department of Labor ("DOL") joined the employee in the lawsuit and took the position that the FLSA retaliation clause should be interpreted to include verbal complaints.

The Seventh Circuit disagreed with the employee and the DOL and found that the FLSA's language did not support an interpretation that the FLSA retaliation clause protected verbal complaints. Essential to its decision was the FLSA's use of the term "to file," which the court stated indicated Congress' intent to require employees to lodge written wage/hour complaints before they are shielded from retaliation.

Before employers become too comfortable with the court's decision, however, it is important to note that not all federal appellate courts agree with the Seventh Circuit's interpretation of the FLSA. Other circuits have ruled that the FLSA retaliation clause includes verbal complaints. This "circuit split" could make the issue ripe for United States Supreme Court review. While the DOL's position was not successful in this case, its interpretation of the FLSA could have significant implications in the future. Additionally, employees may still have claims under state wage/hour laws and employees can still bring FLSA retaliation claims based on written complaints.

If you have any questions about the FLSA retaliation provisions or any other FLSA questions, please contact the labor and employment attorneys at Bingham McHale for more information.

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