For anyone who has been following the U.S. Supreme Court’s recent decisions interpreting wage & hour, discrimination and retaliation claims, yesterday’s decision in Kasten v. Saint-Gobain Performance Plastics (download here), can hardly come as a surprise.
Indeed, in a 6-2 decision, the Supreme Court concluded that to "file" a complaint, an employee need only provide an oral complaint of a violation of FLSA to his employer and not a written complaint; once the employee has done so, then the employer is prohibited from retaliating against that employee because of the complaint.
The implications of this case nationally have been well-covered this morning by others, including Jon Hyman over at the Ohio Employer’s Law Blog. He concludes:
This case merely brings the FLSA’s anti-retaliation provision in line with most, if not all, other statutes. Employers simply need to be aware that they take must all complaints seriously, whether communicated verbally or in writing.
The takeaway that is significant for employers, however, is just how difficult oral complaints are to handle. Oral complaints often place employers in the difficult position of having to prove a negative—that is, that the employee did not complain. To combat this problem, employers should consider establishing a protocol that all complaints must be documented, whether by the employee making the complaint or the individual receiving it.
But what are the implications for employers in Connecticut?
Notably, Connecticut’s anti-retaliation provision under Conn. Gen. Stat. 46a-60(a)(4) also uses the phrase "filed a complaint", but there is a broader context to that section which, one could argue, makes the Supreme Court’s decision irrelevant. The statute prohibits employers from retaliating against a person because that person "has opposed any discriminatory employment practice or because such person has filed a complaint or testified or assisted in any proceeding under section 46a-82, 46a-83 or 46a-84."
Thus, one could perhaps argue while that the "filing of a complaint" in Connecticut appears to require some action at the CHRO and EEOC (and would not cover oral notice), the phrase "opposed any discriminatory practice" still has to be taken into account.
The anti-retaliation provisions of the state wage and hour laws also should be reviewed by employers, but there too, there may be some issues.
Conn. Gen. Stat. 31-69b states that an employer shall not retaliate against:
any employee because the employee has filed a claim or instituted or caused to be instituted any investigation or proceeding under part III of chapter 557 or this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by part III of chapter 557 or this chapter.
Once again, the language is similar to that used under federal law but also has some differences too. Will a court in Connecticut now interpret it the same way because Connecticut courts are free to look to federal court decisions for guidance on these types of similar statutes?
Those are the issues that are left unsettled by the U.S. Supreme Court’s decision yesterday. But the Court’s decision yesterday should put one urban legend to rest: this is not a blindly pro-business court.
Lastly, take a minute to read Justice Scalia’s amusing dissent. He takes issue with the whole view of the majority and noted that there still must be an addressee to receive the complaint. "It presumably does not include a complaint to Judge Judy."