Argument Recap: Court seeks clarity on what counts as a “complaint” under the Fair Labor Standards Act

When Kevin Kasten made oral complaints to his employer regarding potential wage and hour violations, was his conduct protected by the anti-retaliation clause of the Fair Labor Standards Act?   Or is the scope of FLSA § 15(a)(3)’s “filed any complaint” language limited to written complaints to government authorities?  At Wednesday’s oral argument in Kasten v. Saint-Gobain Performance Plastics Corp., the Justices (with Justice Kagan recused) peppered counsel on both sides with hypotheticals in an attempt to nail down precisely what activities § 15(a)(3) is intended to cover.

Justice Alito kicked off questioning by asking whether an employee voicing a concern to a supervisor walking briskly by in the hallway would qualify as the “filing of a complaint” under the FLSA.  Justice Sotomayor quickly followed up with another scenario in which a worker informs a government employee at a cocktail party that his company is violating the law.  James H. Kaster, arguing on behalf of petitioner Kasten, told the Court that both instances would constitute protected activities, despite the lack of formality or procedure.  Pressed by Justice Sotomayor to provide a definition for “filing a complaint,” Kaster explained that the requirement is met “[i]f the person is directing the complaint to the Government and communicates that to the responsible party who can do something about it.”  As for “file,” Kaster argued that the term did not require a writing, but simply meant to “submit or lodge,” a response that drew criticism from Justice Scalia.

Several Justices expressed unease over Kaster’s position that there are no formal requirements for filing.  Justice Alito opined that employers might have difficulty recognizing informal, oral complaints as FLSA complaints.  Noting that the AFL-CIO defined a normal oral filing within the context of an official grievance procedure, Justice Breyer questioned why there was a need to go beyond even that “formal kind of relationship” to include cocktail parties and taps on the shoulders of passing supervisors.  

Justice Scalia in particular appeared uncomfortable with the notion that a complaint could be so informally filed against a private employer. In his view, deciding whether “a filing” had to be in writing or could be solely verbal required resolution of another question: whether the FLSA complaint had to be filed with the government.  While inclined to accept that an oral complaint, pursuant to relevant procedures, to an agency would be sufficient, Justice Scalia was highly doubtful that the same should apply to oral complaints to “private employers including employers that have no grievance procedures, including employers who have employees who go to cocktail parties.”  Kaster countered, however, that several circuits already interpreted the statute as including intracompany complaints, and that only the Second and Fourth Circuits have held that complaints must go to the Department of Labor. 

Assistant to the Solicitor General Jeffrey B. Wall, arguing for the United States as amicus curiae in support of Kasten, attempted to place the FLSA in the context of other statutes with similar anti-retaliation provisions – most of which covered oral complaints. As with Kaster, the Justices questioned Wall rigorously on how an employer would be able recognize an oral complaint as one that is covered by the FLSA, as distinguished from general suggestions or statements of dissatisfaction.  Seeking the Government’s assistance on how to “get this right so that it will not be too formal… [or] too informal,”  Justice Breyer asked Wall to articulate when an oral complaint is sufficient to count as filing a complaint.  Wall suggested that the appropriate indicia of formality would be that an employee has indicated to the employer that she intends to assert statutory rights under the FLSA.  The test, according to Wall, is “whether a reasonable, objective person would have understood the employee to have submitted a complaint.”

Carter Phillips, on behalf of respondent Saint-Gobain, focused on Congressional intent in arguing that the inclusion of oral complaints in § 15(a)(3) was incorrect and “inherently unworkable.”  Phillips contended that the Congress which enacted the FLSA in 1938 would have understood “filing any complaint” to entail some level of formality, just as it would have intended that “instituting any proceeding” to refer specifically to an official action by a government agency. 

Justices Ginsburg and Breyer questioned Phillips’s position that the anti-retaliation provision was aimed not at protecting workers but at ensuring that information reached the federal government; since the statute as enacted in 1938 affected many workers who were illiterate or unable to speak English, Congress may have meant to include all complaints, including oral ones.  Phillips responded that the original provision did not include a private right of action for the employee and that the possibility of criminal sanctions counseled against such an expansive reading.

Justice Breyer suggested that the relevant agencies’ interpretation of the statute for the past thirty years as including oral complaints was “a fairly strong reason for continuing to do so.”  Phillips countered that there was no such history of permitting oral complaints in the private context.  Rather, no deference to the government’s position was warranted because the matter had not been allocated to the agencies to administer and adopt regulations, and there was no persuasive weight in their interpretation as applied to private employers.

Complicating the respondent’s position, noted Justice Scalia, was its insistence that § 15(a)(3) applied not merely to complaints filed with the government, but only to written complaints to the government.  While Phillips expressed a willingness to forgo the latter, he declined to endorse an interpretation of the statute as including written complaints to a private employer, but both written and oral complaints to a government agency.  The better and more fundamental question, Phillips maintained, was not whether oral complaints were sufficient, but whether the provision applied at all beyond the government agency context.