Only Written Complaints Are Protected by Federal Wage-and-Hour Law

An employee who was fired after he orally complained about alleged violations of the Fair Labor Standards Act cannot sue his employer for retaliation under the law because he failed to put his grievances in writing, a federal appeals court in Chicago has ruled.

The 7th U.S. Circuit Court of Appeals said the anti-retaliation provision of the FLSA protects an employee from being fired because he or she has "filed any complaint."

"The natural meaning of the phrase 'file any complaint' requires submission of some writing to an employer, court or administrative body," the three-judge panel explained.

Kevin Kasten worked for Saint-Gobain Performance Plastics Corp. in Portage, Wis., from 2003 until he was fired in 2006.

At some point during his tenure Kasten took issue with the location of the company's time clocks. He orally told several supervisors that the location of the clocks meant that employees were not being paid for time spent putting on and taking off their required protective gear, in violation of the FLSA.

Saint-Gobain disciplined Kasten a number of times for failing to punch in on the time clocks, warning him each time that he faced termination if he did not adhere to the time clock policy.

Finally, the company suspended and then fired him for refusing to clock in as required.

Kasten sued Saint-Gobain in the U.S. District Court for the Western District of Wisconsin, alleging he was fired in violation of the anti-retaliation provision of the FLSA.

The court granted summary judgment to Saint-Gobain, finding that Kasten had not engaged in an activity protected by the statute because he had not "filed any complaint" about the allegedly illegal location of the time clocks.

The court concluded that although intra-company complaints were protected activity, unwritten oral complaints were not.

On appeal, the 7th Circuit affirmed.

First, the panel agreed with the lower court and several other jurisdictions that the plain language of the FLSA indicated that internal intra-company complaints are protected under the statute.

However, again under the plain language of the statute, purely oral complaints are not protected, the appeals court said.

The panel rejected Kasten's argument that the word "file" can mean "submit," deeming that usage "overbroad."

The 4th Circuit has found that oral complaints are not protected activity, while the 6th, 8th and 11th circuits have ruled that oral complaints or "voicing concerns" were protected activity, the court noted.

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Kasten was represented by James Kaster in Minneapolis.Counsel for Saint-Gobain are Anthony Sievert of Whyte, Hirschboeck & Dudek in Madison, Wis., and Thomas Godar of Michael Best & Friedrich in Milwaukee.