Opinion analysis: FLSA protects oral complaints

By James Bickford
on Mar 26, 2011 at 7:54 am

After Kevin Kasten told his employer that its timeclocks were illegally placed, he was fired.  Kasten then sued, claiming that he had been fired in retaliation exercising his rights under the Fair Labor Standards Act, which prohibits employers from firing an employee “because such employee has filed any complaint… under or related to” the Act.  On Tuesday, by a vote of six to two, the Court held that an FLSA complaint could in fact be “filed” orally.  In the opinion, Justices Breyer and Scalia continued their conversation about the proper method and scope of statutory interpretation:  Justice Breyer, in his opinion for the Court, provided an explicitly contextual and purposive account of the statute, while Justice Scalia – in a dissent largely joined by Justice Thomas –would have held that the FLSA does not cover complaints made to an employer, an issue that the Court chose not to address.  Justice Kagan was recused.

The Court began its analysis of the statute by examining the phrase “filed any complaint” and concluding that, when “considered in isolation,” the statutory language “may be open to competing interpretations” of what it means to file.  Justice Breyer noted that “[s]ome dictionary definitions of the word contemplate a writing” while others “permit the use of the word ‘file’ in conjunction with oral material.”  Legislative, administrative, and judicial usage sometimes extends to oral statements.  The Court acknowledged that “[f]ilings may more often be made in writing,” but emphasized that “the phrase ‘any complaint’ suggests a broad interpretation.”  “The upshot,” Justice Breyer wrote, “is that the three-word phrase, taken by itself, cannot answer the interpretive question.”  Nor could the matter be settled by recourse to other uses of the word “filed,” whether in the FLSA or in other statutes.  Considering only textual sources led the Court to conclude that “[t]he phrase ‘filed any complaint’ might, or might not, encompass oral complaints.”

Thus, the Court answered the question by turning to “[s]everal functional considerations.”  Limiting the antiretaliation provision to the filing of written complaints would weaken the enforcement of the labor standards that are a central purpose of the FLSA; moreover, such limitations would particularly disadvantage illiterate or less educated workers.  The more restrictive reading would also limit the administrative flexibility of those charged with enforcing the Act.  The Court acknowledged that the Act was also intended to establish a system that is fair to employers, and that fair notice of complaints was an element of such a system:  Justice Breyer wrote that “the phase ‘filed any complaint’ contemplates some degree of formality,” and pointed out that it was difficult to imagine how an employer who did not know that a complaint had been filed could fire an employee in retaliation for filing it.  The Court noted that administrative interpretations of the provision had consistently applied it to oral complaints, and (per Skidmore) considered those interpretations to add force to its own conclusion.  Given the adequacy of these “traditional methods of statutory interpretation,” the Court rejected the argument that because employers who retaliate can face criminal sanctions the rule of lenity should be applied to resolve the statutory ambiguity.  Finally, the Court declined to address the question of whether a complaint could be “filed” with an employer rather than with the government.  The Seventh Circuit had ruled that it could, and the issue was not raised in the certiorari briefs.

Justices Scalia and Thomas would have answered the question that the Court avoided and held that “[t]he plain meaning of the critical phrase and the context in which [it] appears make clear that the retaliation provision contemplates an official grievance filed with a court or an agency.”  Their dissenting opinion begins by observing that everywhere else in the FLSA “complaint” refers to “an official filing with a government body.”  They argue that “filed” (whether or not it encompasses oral statements, which they decline to address) “suggests a degree of formality consistent with legal action.”  The dissenting Justices note that the prohibition against retaliation for filing a complaint appears in the statute alongside prohibitions against retaliation for instituting a proceeding, testifying in such a proceeding, or serving on an industry committee—all of which involve “an interaction with governmental authority.”  Finally, they point out that there was originally no private right of action for retaliation, and so argue that it makes sense to say that the statute as enacted required complaints to be filed with the official who could punish retaliation for that firing.

Although the dissenters conclude that the phrase in question is clear enough to obviate any need “to rely on abstractions of congressional purpose,” they nonetheless suggest that Congress may have required complaints to be filed with the government so as to limit the amount of litigation stemming from claims of retaliation.  The dissenters reject the interpretative value of the Court’s reference to modern statutes, and argue that no deference should be given to the administrative interpretations that the Court cites, because the FLSA provides no administrative authority to issue legally binding interpretations of the provision at issue.  (Justice Scalia, writing alone, drops a footnote here arguing that the doctrine of “Skidmore deference” is incoherent.)

Finally, the dissenters argue that the question on which they would decide the case is in fact properly before the Court.  Although the issue of where a complaint can be filed was not raised in the certiorari briefs, the dissenters note that the Court is permitted to consider such arguments and does so when the issue must be addressed in to reach “an intelligent resolution of the question presented”—as they argue that it is necessary here.