Supreme Court to Decide Whether a Verbal Complaint is Protected Activity Under the Anti-Retaliation Provision of the FLSA

The FLSA provides in section 215(a)(3), in pertinent part, as follows:

[I]t shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

In Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. 2009), the original panel of the 7th Circuit, judge Flaum writing for Circuit Judge Bauer and District Judge Kapala, held that internal complaints are cognizable as protected activity under the FLSA, and went on to hold that verbal complaints are not protected activity as the statute uses the term “filed”, suggesting to the panel that a complaint must be written.

On consideration of the petition for rehearing, all other members of the Circuit joined their decision and voted to deny rehearing, with Circuit Judges Rovner, Wood, and Williams dissenting. The dissenters note that the court’s decision has been rejected by the 6th Circuit (EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992)); 8th Circuit (Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181-82 (8th Cir. 1975)); 9th Circuit (Lambert v. Ackerley, 180 F.3d 997, 1003-07 (9th Cir. 1999)); 10th Cir. (Marshall v. Parking Co. of Am.-Denver, Inc., 670 F.2d 141, 142-43 (10th Cir. 1982)); 11th Circuit (EEOC v. White and Sons Enters., 881 F.2d 1006, 1011-12 (11th Cir. 1989)); as well as the views of a host of district courts (585 F.3d 310, n. 1 (7th Cir. 2001)) and the view of the United States Department of Labor for some 50 years (citing Goldbert v. Zenger, 43 Lab. Cas. (CCH) 31,155, at 40,986 (D. Utah 1961)).

One wonders whether the 1997 decision of Auer v. Robbins, 519 U.S. 452, may not carry the day. In Auer, the Court held that the Secretary of the United States Department of Labor’s position was worthy of deference even though advanced in litigation and “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” 519 U.S. at 462.