Supreme Court’s Decision in Kasten Less Than Meets The Eye
The major Federal employment statues also protect employees from being retaliated against for asserting their rights under those laws. The Federal law that requires that employers pay minimum and overtime wages (the Fair Labor Standards Act) provides that an employer can’t retaliate if an employee “has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the FLSA.
Yesterday the Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. held 6-2 that a protected “complaint” can be either written or oral. Justice Breyer wrote for the majority. What’s interesting about the case is the question it expressly didn’t decide: whether a protected “complaint” may be made to the employer, or if it has to be made to a court or governmental authority. There was actually little doubt that an oral complaint was protected - aside from the case below, there were no circuit court decisions holding otherwise. However, there is a circuit split about whether a complaint to the employer is protected. Saying yes are the First, Third, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits, along with the Fourth Circuit which strongly implied that it would protect such complaints. Ball v. Memphis BBQ, 228 F.3d 360 (4 Cir. 2000).
Standing alone in holding that a complaint to an employer is not protected is the Second Circuit, see Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.1993). Curiously, the Supreme Court noted this split in discussing why it granted cert, but, since Lambert didn’t turn on whether the complaint was written or oral, but rather who it was made to, the Supreme Court actually doesn’t resolve the circuit split for which it allegedly granted cert! So, for the time being, the law is unchanged in the Second Circuit - an employer does not violate the FLSA if it fires an employee who complains internally about not getting paid overtime or minimum wages. Fortunately, the New York Labor Law protects internal complaints, so an employee who is the victim of such retaliation still has a state court remedy in New York.
With Scalia and Thomas in dissent arguing that internal complaints are not protected whether written or oral, one wonders if Judge Breyer could not get five votes, since Justice Kagan abstained from the case, for the broader proposition that internal complaints are protected.
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