The FLSA Antiretaliation Provision: Defining the Outer Contours of What Constitutes an Employee Complaint

• Author: Erin M. Snider
• Position: J.D. Candidate, The University of Iowa College of Law, 2011
• Pages: 385-408

Erin M. Snider. J.D. Candidate, The University of Iowa College of Law, 2011; B.S., Portland State University, 2006.

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I Introduction

When Kevin Kasten believed that his employer failed to compensate him for all the time he worked, he did what many U.S. workers would be inclined to do: he spoke to his supervisor.¹ When he was subsequently fired, he sued his employer for unlawful retaliation.² In Kasten v. Saint-Gobain Performance Plastics Corp., however, the Seventh Circuit held that Kasten acted at his own peril—Saint-Gobain Performance Plastics could freely retaliate against him for complaining about the company’s illegal conduct.³

The Fair Labor Standards Act (“FLSA”), which regulates wages and hours, includes an antiretaliation provision that protects employees who complain that their employer is violating the Act’s substantive provisions. Circuit courts disagree as to whom employees may complain and what form complaints must take. While one circuit has held that an employee must file a complaint with an outside agency or court, the majority of circuits have held that the antiretaliation provision protects an employee’s complaint to his or her supervisor—referred to as an “internal complaint.” Within the majority approach, courts have struggled to determine what constitutes an internal complaint. Most circuits have held that the focus of the inquiry is on the substance of the employee’s complaint.

In Kasten, the Seventh Circuit weighed in on this debate. The court took a decidedly different stance by holding that, while internal complaints are protected, such complaints must be written.⁴ Thus, Kasten’s act of orally complaining to his supervisor did not fall within the ambit of the FLSA antiretaliation provision.⁵

In an act likely to settle the current split among the circuits, the U.S. Supreme Court granted certiorari in the Kasten case and will hear arguments in the 2010 Term. The Court’s decision will likely have far-reaching effects in the employment-law field⁶ —a discussion beyond the scope of this Note. Rather, this Note will explore the Seventh Circuit’s reasoning in Kasten and will ultimately argue that the Seventh Circuit’s approach of limiting protection to written complaints is arbitrary. Instead, courts should focus onPage 388 substance rather than form when determining whether an employee complaint is protected under the FLSA antiretaliation provision.

Part II of this Note begins by examining the disagreement that has developed in the circuit courts over the reach of the FLSA’s antiretaliation provision. Part III sets forth the Seventh Circuit’s analysis in Kasten. Part IV argues that the Seventh Circuit approach is an unnecessarily restrictive and problematic reading of the statutory language. Finally, Part V of this Note elaborates on a totality-of-the-circumstances test that courts should use when determining whether an employee’s complaint falls within the meaning of the FLSA antiretaliation provision.

II Courts Are Split on How To Interpret the FLSA Antiretaliation Provision

Before discussing the Kasten case, it is useful to explore the statute at issue and the case law leading up to the Seventh Circuit’s decision. This Part briefly discusses the FLSA, its antiretaliation provision, and the two approaches that have developed regarding internal complaints.

A The Fair Labor Standards Act

Congress passed the FLSA in 1938 to combat “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”⁷ The Act, hailed as being “unquestionably . . . the most important American statute dealing with wages and hours,”⁸ sets a minimum wage,⁹ maximum hours (beyond which overtime payment is required),¹⁰ and restricts child labor.¹¹ In 1963, Congress amended the FLSA to include the Equal Pay Act, which prohibits employers from discriminating on the basis of sex when setting wages.¹² The Supreme Court has stated that because the FLSA is a piece of “remedial and humanitarian” legislation, it “must not bePage 389 interpreted or applied in a narrow, grudging manner.”¹³ One provision that has raised interpretation issues is the antiretaliation provision.

B The Antiretaliation Provision

The FLSA’s antiretaliation provision, codified at § 215(a)(3), provides that it is unlawful for an employer:

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.¹⁴

This provision protects three distinct types of employee activities: (1) filing any complaint; (2) instituting a proceeding; and (3) testifying in a proceeding.¹⁵ Through this antiretaliation provision, Congress sought to ensure employer compliance with the FLSA by promoting an environment in which employees could vindicate their rights and air their grievances without fear of “economic retaliation.”¹⁶ Thus, the provision protects employees who engage in one of the listed activities and thereby encourages employees to police employers, who will in turn be more apt to comply with FLSA requirements.

A plaintiff must establish three elements to make out a prima facie case of FLSA retaliation: (1) the plaintiff must have engaged in a “statutorily protected activity”; (2) the plaintiff must have suffered an “adverse employment action”; and (3) the plaintiff must establish a causal connection between the plaintiff’s conduct and the subsequent adverse employment action.¹⁷ Of primary importance in this Note is the first element of the prima facie retaliation claim—engagement in a protected activity. To satisfy this element, a plaintiff must show that he or she engaged in one of the three types of activities listed in the statute: (1) filing any complaint; (2)Page 390 instituting a proceeding; or (3) testifying in a proceeding. Absent this showing, a plaintiff cannot establish a prima facie case. Of the three types of protected activities, the complaint clause in particular has caused confusion in the courts. Due to the current circuit split, the ability of employees to recover for retaliation highly depends on the circuit in which they sue.

C Courts Are Split on Whether an Internal Complaint Is a Protected Activity

The confusion over the complaint clause centers on whether it encompasses an employee’s complaint to a supervisor. While a majority of circuit courts have held that such complaints, known as “internal complaints,” are protected, one circuit has held that the complaint clause only protects those employees who file formal complaints with a court or outside agency, such as the Department of Labor. This Subpart explores the rationale behind each approach.

1. Plain-Meaning Approach

Under the plain-meaning approach, the complaint clause only encompasses formal complaints lodged with a court or agency.¹⁸ The Second Circuit is the only circuit court that has adopted the plain-meaning approach.¹⁹ Although other courts have cited the Fourth Circuit as embracing this approach,²⁰ the Fourth Circuit has never definitively decided the issue and, on the contrary, even suggested that it may recognize internal complaints as a protected activity under § 215(a)(3).²¹

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Supporters of the plain-meaning approach offer two reasons why protection is limited to formal complaints. First, they argue that the plain language of the provision expressly contemplates a complaint made under or pursuant to the FLSA.²² Section 216(b) of the FLSA provides that employees or the Secretary of Labor may sue in “any court of competent jurisdiction” for violations of § 215(a)(3).²³ Thus, this approach holds that a complaint must be filed either in a court or with the Department of Labor.²⁴ Furthermore, plain-meaning advocates argue that the word “filing” in the complaint clause connotes a “formal or official procedure.”²⁵

Secondly, plain-meaning proponents compare the language in § 215(a)(3) to the broader language in Title VII’s antiretaliation provision.²⁶ Title VII prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin.²⁷ Under Title VII’s antiretaliation provision, it is “an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter.”²⁸ Plain-meaning proponents argue that “[b]ecause Congress chose not to includePage 392 an ‘opposition’ clause in § 215(a)(3), it stands to reason that Congress’ intent was for § 215(a)(3) to cover a more narrow range of employee activities than are [sic] covered by the anti-retaliation clause of Title VII.”²⁹ Because these courts conclude that the language of § 215(a)(3) is clear and unambiguous...