U.S. High Court Hears Arguments In Appeal Over FLSA, Verbal Complaints

WASHINGTON, D.C. - (Mealey's) Both written and verbal complaints are allowed under the Fair Labor Standards Act (FLSA), the attorney representing a former plastics company employee argued before the U.S. Supreme Court on Oct. 13 (Kevin Kasten v. Saint-Gobain Performance Plastics Corporation, No. 09-834, U.S. Sup.).

"When Kevin Kasten told his employer that the location of the time clocks was illegal and that if they were taken to the court they would lose, he filed any complaint within the meaning of the 215(a)(3) under the Fair Labor Standards Act, because filing includes an oral communication, because 'any' means any, which includes formal or informal, written or unwritten communications," argued James H. Kaster of Nichols Kaster in Minneapolis.

Assistant to the Solicitor General Jeffrey B. Wall of the U.S. Department of Justice also presented oral arguments on behalf of the United States in support of Kasten.

Kasten worked at Saint-Gobain Performance Plastics Corp.'s Portage, Wis., facility.  All hourly employees, including Kasten, were required to use a time card to swipe in and out.  On Feb. 13, 2006, Kasten received a verbal warning for failure to properly clock in and out.  Kasten received two written warnings, once in August 2006 and once in November 2006, for the same violations.

Between October and December 2006, Kasten claimed that he lodged a number of complaints with his supervisor regarding the location of the company's time clocks.  He claimed that the location prevented employees from being paid for time spent donning and doffing protective gear.  Saint-Gobain claimed that Kasten never complained about the clock locations.

Kasten was suspended Dec. 6, 2006, for once more violating the company's time-clock policy and was terminated five days later.  He sued Saint-Gobain in the U.S. District Court for the Western District of Wisconsin, alleging that he was terminated in retaliation for his complaints about the placement of the time clocks.  Judge Barbara B. Crabb granted the defendant's motion for summary judgment, finding that Kasten never "filed any complaint" about the location of the time clocks.

The Seventh Circuit panel affirmed, finding that the FLSA requires the "filing" of a complaint.  Kasten petitioned the Supreme Court in January.

Representing Saint-Gobain, Carter G. Phillips of Sidley Austin in Washington said the standard being proposed by Kaster was unworkable.  "I think you have to read [the 1938 Congress'] language as the way it was written and as the way they would have understood it at the time, which was to file any complaint, which as it would have been understood in '38 and frankly after that, when you file a complaint that usually entails some notion of formality and when you put it in the context of a specific provision where it is not only filing a complaint, but institutes any proceeding, caused any proceeding to be instituted, justify any proceeding," Phillips argued.

[Editor's Note:  Full coverage will be in the November 2010 issue of Mealey's Litigation Report: Employment Law.  In the meantime, the oral arguments transcript is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-101112-006T.  For all of your legal news needs, please visit]

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