WASHINGTON, D.C. - 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 October
13 (Kevin Kasten v. Saint-Gobain Performance Plastics Corporation, No.
09-834, U.S. Sup.; See September 2010, Page 27).
"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
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
[Editor's Note: Oral arguments transcript is
available at www.mealeysonline.com
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 www.lexisnexis.com/mealeys.]
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