Employment practitioners have been waiting for a long time for the Kasten V. Saint-Gobain Performance Plastics Corporation decision. That case arose under the Fair Labor Standards Act, which governs wages and overtime issues, among other things. Kevin Kasten complained orally, several times, about his company’s practice of putting the time clocks in a place that the employees can’t reach until they have put on the protective gear required for their jobs. Under the law, the employer has to pay them for the time they spend putting on and taking off the gear, but this company did not. After Mr. Kasten’s complaints, he was fired.
The Supreme Court had to resolve the issue whether an oral complaint was enough to invoke anti-retaliation protection. Unlike the laws prohibiting race and sex discrimination, the FLSA uses the word “filed” in connection with a complaint. After reviewing different definitions of filed, the Court turned to the reason for the anti-retaliation protection. Justice Breyer wrote “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act’s help.”
While employers worry that oral complaints present problems of whether the right people get notified, it is important to recognize the effect of a rule that everything has to be in writing. Once employees are trained that they must lodge written complaints, the workplace will get less flexible and friendly. An oral complaint to a supervisor or, as in Mr. Kasten’s case, the company’s ethics hotline, should be enough to alert the company to determine whether it needs to investigate further. Had the company here done that, and realized it had to pay employees differently, it would not have been in the Supreme Court (not to mention all the other courts where other employees may have sued it).