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Wright on Kasten v. Saint-Gobain Performance Plastics Corp.

In Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th Cir. Wis. 2009), cert. granted, 2010 U.S. LEXIS 2654 (U.S. Mar. 22, 2010) the U.S. Supreme Court, after granting the employee's writ of certiorari, is now left to decide whether an oral complaint of a Fair Labor Standards Act (FLSA) violation is protected conduct under the anti-retaliation provision, 29 USCS § 215(a)(3). In this Analysis, Danyelle Wright explores Kasten and the issues presented. She writes:

ARTICLE: A. INTRODUCTION.

     An employee orally complained to his employer about the legality of the location of time clocks, claiming that the location prevented employees from being paid for time spent donning and doffing their required protective gear. The employee is then terminated for violating the company's time clock policies. Shortly thereafter, the employee files a Fair Labor Standards Act complaint against the employer alleging that he was terminated in retaliation for his oral complaints regarding the locations of the time clocks. The case eventually makes its way to the U.S. Seventh Circuit Court of Appeals, which holds that the employee's oral complaints are not protected by the FLSA. The U.S. Supreme Court, after granting the employee's Writ of certiorari, is now left to decide whether an oral complaint of a violation of the FLSA is protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3). The key issue for the Supreme Court to determine is whether the provision's term "to file" requires an employee to file a written complaint, as opposed to the employee simply making an oral complaint to his or her employer.

     . . . .

F. KASTEN'S ARGUMENTS.

     Kasten argues that the Seventh Circuit's interpretation of the FLSA anti-retaliation provision is incorrect and that certiorari is warranted for three reasons. First, Kasten argues that the Seventh Circuit's decision conflicts with the decisions of six other Courts of Appeals. Kasten points out that employees in the Seventh Circuit will receive protection under the FLSA only if they file written complaints, while employees in the Sixth, Eighth, Eleventh, Fifth, Ninth, and Tenth Circuits receive protection when they issue oral or written complaints. The effect of such a discrepancy among the circuits, Kasten argues, is unworkable and would lead to confusion and legal nightmares for national corporations.

     Second, Kasten argues that the Seventh Circuit's decision eviscerates the FLSA's protection for workers who bring violations of the statute or the Equal Pay Act to their employers attention. Specifically, Kasten opines that a "decision . . . that internal complaints that are oral are not covered . . . would have an adverse impact upon the administration of the Department of Labor's programs" and that "employees who wish to resolve an issue informally with their employers will think twice before doing so if they are aware of the potential consequences in the Seventh Circuit. In short, Kasten argues that the Seventh Circuit's decision will have a chilling effect on protecting workers under the FLSA, as well as the Occupational Safety and Health Act, the Railway Labor Act, the Surface Transportation Act, the Migrant and Seasonal Agriculture Act, and the Employee Polygraph Protection Act. He argues that oral complaints under these statutes may no longer receive protection against retaliation in the Seventh Circuit if the decision stands.

(footnotes omitted)

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