U.S. Supreme Court Opinion Leaves Open Important Questions About Which Oral Complaints Are Covered Under FLSA’s Anti-Retaliation Provisions—But Many Circuits Have Already Answered Them

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In Kasten v. Saint-Gobain Performance Plastics Corporation, the Supreme Court answered in the affirmative the question of whether oral “complaints” can serve as the basis of a Fair Labor Standards Act (“FLSA”) anti retaliation claim. 536 U.S. ____ (Mar. 22, 2011, No. 09-834) [2011 U.S. LEXIS 2417]. The Court, however, left unanswered to whom those complaints must be lodged. Will complaints to employers suffice? Justice Scalia’s dissent answered that question with a definite “No.” Many circuit courts have also considered the question—and have mostly concluded that informal complaints filed with employers are sufficient.

The sole issue in Kasten was whether an oral complaint of a violation of the FLSA is protected conduct under the act’s anti-retaliation provision. The Supreme Court answered “Yes.”

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