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Supreme Court Agrees To Decide Whether A Verbal Complaint To An Employer Is Sufficient To Trigger FLSA Anti-Retaliation Protections

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Andrew Frisch

Kasten v. Saint-Gobain Performance Plastics Corp.

The Supreme Court has granted certiorari to decide whether the question:

“Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?”

In a decision discussed here,  the 7th Circuit previously held that “any complaint” includes an employee’s internal complaint to his or her own company.  However, the Court also held that an employee who complains verbally, not in writing, has not engaged in statutorily protected activity, so he or she is not protected by the FLSA’s anti-retaliation provision.

Following the decision, the Plaintiff sought a rehearing en banc.  In the decision denying a rehearing en banc, three 7th Circuit judges dissented.  The dissenting judges noted that the 7th Circuit was the only Circuit to construe the definition of protected activity so narrowly.  Now the Supreme Court will decide whether they were right, or whether the remedial nature of the FLSA supports protection from retaliation for those who make verbal complaints, but not complaints in writing.


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