The U.S. Supreme Court has agreed to hear a case from Chicago where the district court and Seventh Circuit Court of Appeals concluded that an oral complaint under the Fair Labor Standards Act is not sufficient to state a claim for FLSA retaliation. Unlike most other federal appellate courts, the Seventh CIrcuit concluded that only a written complaint to the employer about unpaid wages or unpaid overtime is protected by the FLSA. Every other court has concluded than any complaint made by an employee to an employer about overtime constitutes protected activity. In other words, if an employee in Chicago has an in-person discussion with his manager about why he is not being paid overtime, the employer may lawfully terminate the employee for having this discussion. Had the employee had the same discussion in an email exhange, the FLSA's anti-retaliation provision would be applicable, and any termination that resulted from the email exchange would be unlawful.
The Seventh Circuit's decision in Kasten v. Saint Gobain Performance Plastics Corporation is clearly incorrect because it results in creating a distinction between an in-person and email discussion between an employee and an employer. The blog anticipates that the Supreme Court will reverse the decision and apply a more liberal and equitable interpretation of the FLSA's anti-retaliation provision. The case likely will not be heard until October 2010. The employee's petition for certiorari gets it exactly right, and is available here:
Sarelson Law Firm has successfully represented employees and employers in FLSA retaliation lawsuits. Contact the Firm with questions.
