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Seventh Circuit Says Internal FLSA Complaint Must Be in Writing to Be Protected Activity

    Client Alerts
  • August 14, 2009

Like most federal employment laws, the Fair Labor Standards Act prohibits retaliation against an employee who engages in protected activity under the law.  A new Seventh Circuit Court of Appeals decision required an employee to submit written complaints before according them with the statute’s protections.

In Kasten v. Saint-Gobain, the plaintiff was repeatedly warned and eventually terminated for failure to follow timeclock procedures.  He sued claiming retaliation under the FLSA.  In his complaint, the plaintiff alleged that he had complained numerous times about the location of the clocks and his belief that the locations forced employees to work off of the clock in violation of FLSA “donning and doffing” requirements.

The employer sought dismissal of the lawsuit, noting that the alleged complaints were never made in writing.  The Seventh Circuit agreed, affirming dismissal of the complaint.  In its decision, the Seventh Circuit noted that unlike other federal employment laws the FLSA’s anti-retaliation provision requires employees to “file” a complaint.  While internal complaints are protected, the court found that the plain language meaning of this provision is that oral complaints are not protected FLSA activity.

Employers should view this decision with a degree of caution.  The Seventh Circuit distinguished a line of recent U.S. Supreme Court decisions that expansively interpreted statutory anti-retaliation protections.  In cases where the oral complaints were made to human resources or to a member of management with responsibility over the area of dispute, it would be hard for the employer to contend that it was not aware of the legal issues involved.  While this decision provides a good argument in the event of litigation, most employers would not want to risk a contrary opinion by ignoring employees’ non-written FLSA complaints.