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Justices Consider Fair|Labor Standards Case

WASHINGTON (CN) - The Supreme Court on Wednesday considered whether an employee has to file a written complaint or submit a complaint orally to a supervisor to have a claim under the Fair Labor Standards Act. "So you are filing your argument right now," Justice Antonin Scalia said to James Kaster, the lawyer arguing for employees' rights. "That is absurd."

Kaster was representing Kevin Kasten, who filed an anti-retaliation claim after being fired from Saint-Gobain Performance Plastics Corp. for failing to use a time clock correctly after he repeatedly complained to supervisors that the time clock was in an illegal location. The district court ruled for Saint-Gobain, saying Kasten's oral complaint was not protected under the Act.

Kaster said the plain language of the Act, which protects against an employee who files "any complaint," meant there are no formality requirements for filing a complaint.

The justices said if there were no formality requirements, then an employee could claim to have submitted a complaint at a cocktail party or happy hour.

The Act allows for oral complaints to be filed with the government via telephone, but Justice Antonin Scalia said he was "very disinclined" to apply the government standard of filing via telephone to private employers "including employers who have employees who go to cocktail parties."

Justice Samuel Alito questioned whether an employee who taps the shoulder of a superintendent walking briskly by to attend to a hurt employee could be considered to have filed a complaint. Kaster said it would.

"Are you filing your comments right now?" Alito asked. "I think I am, your honor," Kaster said. Kaster said the meaning of file was to submit or lodge.

"So you are filing your argument right now," Scalia said. "That is absurd."

Justice Stephen Breyer asked why, in order to better define how an oral complaint would be filed, Kaster would not import the AFL-CIO standards for filing a complaint without writing, which include safeguards like a confrontation involving fact-finding and a face-to-face discussion about the problem.

Kaster said the average workplace did not have the right construction for that type of formality. Kasten, for example, did not have an office.

Breyer asked the government's attorney, Assistant Solicitor General Jeffrey Wall, how to write a construct for filing oral complaints "so it will not be too formal, it will not be too informal, it will do the job."

"Fill in this blank," Breyer said. "There must be surrounding the oral complaint sufficient elements of formality such that -" Breyer gestured to Wall.

"That the employee has indicated to his employer, someone in supervisory authority, that he is asserting statutory rights under the FLSA," Wall said.

Carter Phillips, arguing for Saint-Gobain, said an informal standard for submitting oral complaints was "inherently unworkable."

Phillips said the Act allowed oral complaints to be submitted to the government, who would then institute a proceeding, but not at private companies.

"Why would it be different?" Breyer asked. "If an agency works out a system of deciding when a person is really making a complaint...why couldn't whatever their indicia are there, also be transplanted to the private sector?"

Phillips said the private sector did not have "anywhere near" the decades of practice that the government has in dealing with oral complaints.

The case is 09-834, Kasten v. Saint-Gobain.

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