The EEOC's Final Regulations interpreting the ADAAA reinforce the expectation that under that law, employers will be far less likely to prevail at summary judgment with an argument that the employee in question was not disabled under the ADA.   For more information, please see our Legal Alert here.  In addition, we encourage you to register for our webinar on April 13 from 12:30 p.m. to 1:30 p.m. EST for an in-depth discussion of the implications of the ADAAA and its Final Regulations by clicking here.

 The Supreme Court's Decision in Kasten v. Saint-Gobain Performance Plastics Corp.

             In Kasten, an employee alleged that he orally complained to his immediate supervisor and to his employer's Human Resources Manager and Operations Manager that the company's timeclocks were placed in locations that prevented employees from clocking in until after they had commenced their compensable working time and required them to clock out before the end of their compensable working time, thus resulting in underpayments under the FLSA.  After the employee was discharged, he filed a lawsuit under the FLSA, claiming that the discharge was in retaliation for his complaints alleging FLSA violations.  Both the trial court and the Seventh Circuit Court of Appeals rejected the employee's claims on the grounds that the FLSA's retaliation provision does not protect employees who make oral complaints about wage-and-hour matters.

             Reviewing the Seventh Circuit's ruling, the Supreme Court held that the FLSA's retaliation provision does indeed cover oral complaints of alleged FLSA violations.  The Court first noted that the statutory language, which refers to an employee who has "filed a complaint," was not conclusive, because the word "filed" is used in many legal contexts to refer to the submission of material orally as well as in writing.  The Court observed that giving a broad interpretation to the statutory language would serve the Congressional purpose of putting the primary responsibility for identifying and reporting unlawful wage-and-hour practices on private individuals, noting that a substantial portion of the American work force was illiterate when the FLSA was enacted in the 1930s and that excluding oral complaints of FLSA violations from protection would therefore have exposed many workers to retaliation for reporting violations in the only manner in which they were capable of doing so.  The Court did not believe that Congress could have intended that result.  The Court also found instructive the interpretation of the FLSA's retaliation provision adopted by the Department of Labor, the federal agency given general enforcement authority under that law.  The Department of Labor has long taken the position that the retaliation provision protects employees who file their complaints orally as well as those who file them in writing.

             For these reasons, the Supreme Court concluded that the FLSA's retaliation provision protects employees who file complaints orally.  However, the Court recognized that not all oral remarks about wage-and-hour matters will constitute protected activity.  To fall within the scope of the FLSA's retaliation provision, the Court said, an oral complaint must be sufficiently clear and detailed for a reasonable employer to understand, in light of the complaint's content and context, that it is an assertion of FLSA rights and a call for their protection.  Importantly, the Court did not address the issue of whether a complaint filed exclusively with an employer and not with a government agency is protected under the FLSA's retaliation provision.

 Practical Implications

             Although the Supreme Court did not decide whether a purely internal complaint of an alleged FLSA violation is protected conduct, a number of lower courts have taken the position that an employee who complains only to his employer about noncompliance with the FLSA is protected from retaliation.  Consequently, employers would be wise to treat both oral complaints and written complaints about overtime, minimum wage, and child labor matters that are submitted to management, either directly or through a grievance-resolution process, as protected conduct.  Managers and supervisors should be trained to identify complaints relating to the FLSA and should be instructed not to take such complaints, whether communicated orally or in writing, into account when making employment decisions adversely affecting the employees who make those complaints. 

In Thompson, Eric Thompson, and his fiancée, Miriam Regalado, were both employed by North American Stainless, LP (“NAS”).  Regalado filed a sex discrimination charge against NAS with the Equal Employment Opportunity Commission (“EEOC”), an act protected by Title VII.  Three weeks after learning of the charge, NAS terminated Thompson’s employment.  Thompson subsequently sued NAS under Title VII, claiming that NAS fired him in order to retaliate against Regalado for filing her charge with the EEOC.  After two lower courts ruled that Thompson had no claim under Title VII, the case came before the Supreme Court.  The Court held that because the purpose of Title VII is to protect employees from their employers’ unlawful actions and discharging Thompson was the unlawful action by which the employer retaliated against Regalado, Thompson was within the “zone of interests” sought to be protected by Title VII and could sue NAS under that law. 

Relatives and close friends of an employee who has recently engaged in protected activity under Title VII should, in particular, be considered as being in a protected category, and employers should exercise the same care in reaching employment decisions adversely affecting them that the employer would give to decisions adversely affecting employees who have engaged in protected activity.  To minimize the risks associated with retaliation claims, employers should use their best efforts to document legitimate and nonretaliatory reasons for any adverse employment action taken with respect to these employees.

For a more detailed discussion of the Court’s decision, please see our Legal Alert here.