An employee fired after orally complaining to supervisors that his employer was violating federal wage and hour laws has a retaliation claim under the Fair Labor Standards Act, the worker's attorney told the U.S. Supreme Court Oct. 13, as he urged the justices to reverse a federal appeals court ruling that only written complaints to government officials are protected activity under the FLSA (Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, oral argument 10/13/10).

During oral argument before eight justices, several members of the court appeared receptive to attorney James Kaster's contention that oral complaints trigger FLSA's anti-retaliation provision, but they pressed for limits to his argument. Would an employee's passing remark at a cocktail party to a government official about an employer's alleged FLSA violation be sufficient, Justice Sonia Sotomayor asked. Assuming oral complaints are protected, does the FLSA nevertheless require some formality akin to a union grievance procedure, Justice Stephen Breyer asked.

Justice Elena Kagan, who served as solicitor general before joining the court this summer, has recused herself from the case.

The term “filed” for purposes of FLSA Section 15(a)(3) means directing a complaint to “someone who can do something about it,” said Kaster, a partner with Nichols Kaster in Minneapolis. Kaster argued the FLSA's ban on firing any employee because he has “filed any complaint or instituted or caused to be instituted any proceeding” under the act covers “any and all complaints,” oral or written, to the employer or to government.

Kaster represents Kevin Kasten, a former employee of Saint-Gobain Performance Plastics Corp., who claimed he was fired for complaining to supervisors that the company's time clocks were illegally positioned to prevent workers from being compensated for time spent donning and doffing safety equipment. Kasten also said he told the supervisors he would sue under the FLSA for the alleged violation. (click on link to read full story)