The Fair Labor Standards Act makes it unlawful for an employer “to discharge or in any manner discriminate against any employee because such employee has filed any complaint . . . under or related to this chapter[.]“ This is FLSA’s anti-retaliation clause, preventing employers from taking adverse action against employees that have made complaints under the Act. Several other Acts, like the Occupational Safety and Health Act, have similar provisions. However, courts have disagreed over what “filed any complaint” means. Does it include intra-office complaints, or only complaints to judicial and administrative bodies? And does it include oral complaints or only written complaints? These questions are important in determining whether an employee has triggered the anti-retaliation protections of the Act.
In Kasten v. Saint-Gobain Performance Plastics Corp., the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, denied a request to review a panel decision that held that “filed any complaint” included intra-office complaints, but also held that the provision required a written submission be filed. Three judges dissented from the denial, arguing that other circuits, including the Sixth, Eighth, Ninth, and Tenth, have all found oral complaints to be covered, while noting that the “vast majority” of the circuits have agreed that intra-office complaints are covered as the panel held.
What is noteworthy about this for Virginia businesses is that our own Fourth Circuit held, in Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360 (4th Cir. 2000), that internal complaints are not covered under the anti-retaliation provision, and neither are oral complaints. Only written complaints to judicial or administrative bodies bring an employee under FLSA’s protections. Thus, we have what appellate lawyers call a “circuit split,” which makes these issues ripe for the consideration of the U.S. Supreme Court to finally resolve the matter, should someone appeal this all the way up. The Fourth Circuit’s reading of “filed any complaint” appears to be in the minority — even the Seventh Circuit only agrees with the oral/written part — but for the time being employers need to take note of the differences between the circuits in handling their employment matters until these issues are resolved.
Posted by merrittgreen 
