The U.S. Supreme Court has agreed to review the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics (7th Cir. 2009), (pdf) in which that court held that an oral complaint of a violation of the Fair Labor Standards Act (FLSA) is not considered protected conduct under the Act’s anti-retaliation provision.

The case arose when manufacturer Saint-Gobain Performance Plastics Corp. (“Saint-Gobain”), after implementing a series of progressive disciplinary steps against employee Kevin Kasten for failing to follow proper punching in and out procedures, terminated his employment. Kasten alleged that he verbally complained to his supervisors and a human resources generalist that the location of the company’s time clocks was illegal. To that end, Kasten filed a lawsuit under the FLSA alleging that he was fired in retaliation for his verbal complaints. Specifically, Kasten alleged that his complaints were covered by section 215(a)(3) of the statute, which provides that:

[I]t shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

The employer disagreed that Kasten’s complaints, if actually made, constituted “filing any complaint” under the FLSA. The district court and ultimately the U.S. Court of Appeals for the Seventh Circuit agreed that the FLSA’s phrase requires a plaintiff employee to submit some form of written complaint, whether internally to the organization or externally to an appropriate state or government agency.

In his petition for Supreme Court review, however, Kasten argues that the appellate court “adopted an unprecedented interpretation” of the FLSA’s anti-retaliation provision, and one that runs contrary to interpretations by other circuit courts of appeal. In addition, the plaintiff argues that because the Equal Pay Act is enforced under the provisions of the FLSA, a female employee who complains to her supervisor about a violation of the Equal Pay Act would be left without a claim in the Seventh Circuit.

Should Kasten prevail in his argument, employers could see a rise in retaliation lawsuits based on alleged verbal comments only.