High Court Fortifies Oral Complaints to Employers

     WASHINGTON (CN) – Workers do not need to have filed a written complaint against their employers to prove that they were fired in retaliation, the Supreme Court ruled Tuesday.




     Kevin Kasten had sued Saint-Gobain Performance Plastics for retaliation after he was fired for failing to use a time clock correctly. He claimed that that his supervisors used the infraction as a pretext to fire him for repeated oral complaints that he had made.
     Kasten claims that the company violated the Fair Labor Standards Act by positioning the time clock illegally so that employees had to punch out without getting credit for the time they spent putting on and taking off protective gear.
     A Wisconsin federal judge awarded summary judgment to Saint-Gobain, and the 7th Circuit upheld the decision on appeal, concluding that the federal labor law does not cover oral complaints.
     While the 2nd Circuit ruled in 1993 that the provision does not cover informal complaints to supervisors, at least six other circuits (the 5th, 6th, 8th, 9th, 10th and 11th) had ruled otherwise. The Supreme Court agreed to review Kasten’s case last March.
     At oral arguments in October, Justice Antonin Scalia indicated that he would side with Saint-Gobain. “So you are filing your argument right now,” Justice Antonin Scalia told Kasten’s lawyer at the hearing. “That is absurd.”
     While five of his colleagues concluded Tuesday that the act does in fact cover oral complaints, Scalia followed through with his contempt for the notion and authored a dissenting opinion in which Justice Clarence Thomas joined in all but one footnote.
     The majority’s decision centered on the semantics of the act
     “Filings may more often be made in writing,” Justice Stephen Breyer wrote for the majority. “But we are interested in the filing of ‘any complaint.’ So even if the word ‘filed,’ considered alone, might suggest a narrow interpretation limited to writings, the phrase ‘any complaint’ suggests abroad interpretation that would include an oral complaint.” (Emphasis in original.)
     The justices also looked beyond the text of the act to other statutes and congressional intent.
     “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?” Breyer wrote. “President Franklin Roosevelt pointed out at the time that these were the workers most in need of the act’s help.”
     Scalia and Thomas concluded that Kasten’s complaint was properly dismissed because he should have complained to an official body, such as the courts or some other government agency.
     “The plain meaning of the critical phrase and the context in which appears make clear that the retaliation provision contemplates an official grievance filed with a court or an agency, not oral complaints – or even formal, written complaints – from an employee to an employer,” Scalia wrote.
     Thomas declined to join in a footnote of the dissent in which Scalia used the word “incoherent” to describe the Skidmore doctrine, which grants deference to agency opinions.
     Justice Elena Kagan did not take part in the consideration or decision of the case.

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