Under the Fair Labor Standards Act, employees are protected from retaliation if they "filed any complaint," usually concerning overtime pay or some other entitlement under the FLSA. The question is whether those complaints have to be in writing. The Supreme Court says no. The complaints may be verbal.
The case is Kasten v. Saint Gobain Performance Plastics, decided on March 22. This 6-2 decision is remarkably favorable to employees, consistent with the Supreme Court's expansive interpretation of the retaliation laws over the last decade or so. The message is that the Court hates workplace retaliation in nearly all its forms.
I am sure that every member of Congress who helped draft this legislation in 1938 is dead, so there is no one who can come forward to say which interpretation is correct. This is why federal judges have to become experts in statutory construction. In this case, the majority decision is written by Stephen Breyer, who worked for a Congressional committee years ago helping to write statutes. The dissent is written by Antonin Scalia, known for his provocative view that "legislative history" is an unreliable method. The confusion over this issue is shown by conflicting interpretations by federal courts around the country. They were divided on whether complaints under the FLSA had to be in writing. The Second Circuit said they had to be written. As the Supreme Court notes in rounding up these divergent cases, in Lambert v. Genesee Hospital, 10 F.3d 46, 55–56 (2d Cir. 1993), the Court of Appeals said that the FLSA's antiretaliation provision does not cover informal complaints to supervisors. Lambert is now bad law.
How did the Supreme Court reach its conclusion? First, it noted that the word "filed" under the FLSA could go either way. Some dictionaries say that filed means a formal complaint; others say it could be an informal complaint. So the Court digs deeper, looking at the statutory purpose. Writing for the majority, Justice Breyer says that "an interpretation that limited the provision’s coverage to written complaints would undermine the Act’s basic objectives. The Act seeks to prohibit 'labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.' It does so in part by setting forth substantive wage, hour, and overtime standards. It relies for enforcement of these standards, not upon 'continuing detailed federal supervision or inspection of payrolls,' but upon 'information and complaints received from employees seeking to vindicate rights claimed to have been denied.'”
In addition, when the FLSA was enacted in 1938, many workers were illiterate and were not able to draft formal complaints about wages and hours. Justice Breyer asks the rhetorical question, "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."
The Court also finds that relaxing the filing requirement would make it easier to enforce the statute. "To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act’s enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints. And insofar as the antiretaliation provision covers complaints made to employers, it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act."
That the Secretary of Labor, who enforces the FLSA, has long interpreted the statute to allow workers to make informal and verbal complaints further persuades the Court that they do not have to be in writing in order for the anti-retaliation provision to kick in.
I imagine that one objection to the Court's ruling is that, without a written complaint, an employee can claim that he was fired in retaliation for making a verbal complaint about overtime or some other work-related issue under the statute. Since the complaint was verbal, there is no way for management to disprove the plaintiff's testimony that he made that complaint, and that the best way to prevent this quandary is to require a written complaint that can settle that dispute once and for all. The Court does not address that objection, but surely someone articulated it.
Justices Scalia and Thomas dissent. They believe that "filed any complaint" under the statute does not protect any complaints to management, written or verbal. Under their statutory interpretation, these Justices argue that "complaint" only means complaints to a government body. Later on in the dissent, Justice Scalia says something about Judge Judy.