SUPREME COURT TO DECIDE WHETHER A COMPLAINT MUST BE IN WRITING TO BE COVERED UNDER THE FAIR LABOR STANDARD ACT’S ANTI-RETALIATION PROVISION

            The United States Supreme Court has agreed to review the question of whether an oral complaint of a violation of the Fair Labor Standards Act (FLSA) is considered “protected” conduct under that statute’s anti-retaliation provision.

            Section 215(a)(3) of the FLSA states, in part, that it is unlawful for an employer to discharge or in any other way discriminate against an employee because such employee has filed a complaint pursuant to the FLSA.  However, there is a split among the federal circuit courts of appeal as to whether making a verbal complaint constitutes “filing any complaint” under the statute.  The Second Circuit Court of Appeals, which covers New York, has held that verbal complaints are not considered “formal complaints” under the statute, and thus are not protected. 

            In a recent case arising out of the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana and Wisconsin), the plaintiff alleged that he was fired from his job after complaining that the location of the company’s time clock was illegal under the FLSA.  The employer argued, first and foremost, that it fired the employee for legitimate, nondiscriminatory reasons.  Second, the company argued that even if the employee had made such complaints, those complaints did not constitute “filing any complaint” under the FLSA.

            The Seventh Circuit Court of Appeals agreed with the company, and concluded that to have “filed any complaint” under the FLSA (which also applies to the Equal Pay Act), an employee must file a written complaint, either internally to the employer or externally to the proper government agency.

            The United States Supreme Court has agreed to hear an appeal in this matter, to answer the question:  Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under anti-retaliation provision, 29 U.S.C. §215(a)(3)?  Oral argument on the case, and an eventual decision, are expected later this year.

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