Supreme Court To Hear Another Retaliation Case: Do Oral Complaints Receive Protection
The U.S. Supreme Court on Monday agreed to hear Kasten v. Saint Gobain Performance Plastics, 09-834 (opinion below from 7th Circuit here).
Various other employment law blogs and authors have already chimed in on the case, including Workplace Prof, Michael Fox, Ross Runkel, and the SCOTUSBlog so I won't try to attempt to repeat their wisdom.
But the question that the Court has agreed to address is as follows:
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)?
On first glance you might say, well, of course! It would be difficult to see why the court would distinguish oral complaints from written ones. But the question will turn on the actual language of the statute which prevents retaliation against any person who "filed any complaint". The Seventh Circuit held that act of "filing" requires some type of written submission.
Paul Secunda thinks that this might be a close matter and said he can't speculate on the outcome. Michael Fox disagrees and points the court's recent history in this area to fashion a more expansive reading of the anti-retaliation law.
I tend to agree with Michael on this one. Given the broad public policy of wanting to encourage employees to come forth with information of possible violations of the law, it's hard to see how the court could say that written complaints deserve more protection than oral ones. Nevertheless, I suspect we'll be able to read the tea leaves a bit better after oral argument.
For employers, though, I do not think this case will have much, if any, impact on day-to-day operations -- no matter the outcome. If you do receive a complaint (oral or written), it's still a best practice to followup on it and ensure that any anti-retaliation provisions that you have in place are followed.
Thanks for your comment.
Here's why I think employers are not "technically" required to provide insurance. If they were, then they would be subject to a fine if they didn't AND would still be required to provide the insurance to their employees. Here, they are not. The employees can seek such insurance from various exchanges that will be set up. Contrast with with say, minimum wage laws, where if the employer doesn't comply, they have to pay fines AND pay the employee minimum wage going forward.