The Supreme Court's Interpretation of the Fair Labor Standards Act's Anti-retaliation Provision in Kasten v. Saint- Gobain Performance Plastics Corporation: Putting Policy Over Plain Language?

JurisdictionUnited States,Federal
Publication year2013
CitationVol. 64 No. 2

The Supreme Court's Interpretation of the Fair Labor Standards Act's Anti-Retaliation Provision in Kasten v. Saint- Gobain Performance Plastics Corporation: Putting Policy Over Plain Language?

Lawrence D. Rosenthal

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The Supreme Court's Interpretation of the Fair Labor Standards Act's Anti-Retaliation Provision in Kasten v. Saint-Gobain Performance Plastics Corporation: Putting Policy Over Plain Language?

by Lawrence D. Rosenthal*

I. Introduction

Similar to statutes such as Title VII of the Civil Rights Act of 1964 (Title VII),1 the Age Discrimination in Employment Act (ADEA),2 and the Americans with Disabilities Act (ADA),3 all of which contain anti-retaliation provisions,4 the Fair Labor Standards Act (FLSA),5 which protects employees with respect to wages and hours, also contains such

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a provision.6 Urifortunately, not all of these provisions are identical, which has led courts to interpret them differently, granting more protection under some provisions and less protection under others.7

The United States Supreme Court has been active in defining the contours of Title VII's anti-retaliation provision,8 and the Court recently interpreted one aspect of the FLSA's anti-retaliation provision.9 At issue in Kasten v. Saint-Gobain Performance Plastics Corp.10 was whether oral complaints11 constituted "protected activity" under the FLSA.12 Before Kasten, there was a circuit split with respect to two related issues regarding the FLSA. The first issue was whether internal complaints were protected,13 and the second was, assuming internal complaints were protected, whether they needed to be written.14

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Although the Court did not squarely address the first issue, its conclusion that the FLSA covered certain types of oral complaints, along with the Court's formulation of a test to be used when determining whether certain complaints are protected, certainly suggested that internal complaints were, in fact, protected.15

While Kasten was consistent with the goal of protecting employees who voice concerns over potential FLSA violations, it is not so clear that the decision is consistent with the language of the FLSA's anti-retaliation provision. In fact, the Court might have stretched the text of the FLSA's anti-retaliation provision just about as far as it could in order to reach what it considered to be the "right" result.16 This broad interpretation is consistent with how the Court has liberally construed anti-retaliation provisions found in other employment-related statutes;17 however, many of those provisions are drafted much more broadly than the FLSA's anti-retaliation provision.18

This Article will examine the FLSA's anti-retaliation provision, and it will focus on whether its language covers internal complaints. Section II will examine the text of the provision and compare it to other employment-related, anti-retaliation provisions.19 Section III will examine the circuit split regarding whether internal complaints are protected under the FLSA.20 Section IV will focus on the Court's

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opinion in Kasten and on Justice Scalia's dissenting opinion.21 Finally, the Article will argue that although the Court in Kasten provided more protection to FLSA plaintiffs, it did so despite the FLSA's anti-retaliation provision's narrow language, which suggests that internal complaints are not protected.22 Did the Court put policy ahead of statutory language, or is the FLSA's anti-retaliation provision broad enough to protect internal complaints? Although most courts agree that the Court "got it right," it is possible the Court did so only by stretching the FLSA's text just about as far as it possibly could.

II. The FLSA's Anti-retaliation Provision and Other Employment-related, Anti-retaliation Provisions

The FLSA's anti-retaliation provision can be found at 29 U.S.C. § 215(a)(3). This provision prohibits employers from:

discharg[ing] or in any other manner discriminat[ing] 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.23

Clearly, employees are protected from retaliation only if they engage in any of the specific activities identified in this provision.24 Importantly, nowhere is there any protection provided for an employee who voices, expresses, or raises any FLSA concerns to his employer or for anyone who "oppose[s]" an FLSA violation.25 The absence of any such language

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distinguishes this provision from many other anti-retaliation provisions found in other employment-related statutes.

As previously noted, many employment-related statutes contain anti-retaliation provisions; however, the language in the other federal statutes is much broader.26 For example, Title VII's anti-retaliation provision provides the following:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.27

Under Title VII, employees are protected if they oppose what they reasonably believe to be an unlawful employment practice,28 and they are also protected if they participate in a Title VII proceeding.29 The Court has interpreted this provision broadly to further the goal of protecting employees;30 however, one difference between Title VII and the FLSA is the absence of an "opposition clause" from the FLSA.31 It is the absence of this language that caused some courts to interpret the FLSA in a more restrictive manner.32

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Other federal employment-related statutes also contain anti-retaliation provisions with "opposition" language, including the ADEA,33 the ADA,34 and the Family and Medical Leave Act (FMLA).35 Had all of these anti-retaliation provisions been drafted identically, their interpretation would most likely be consistent; however, because of the differences in the provisions' language, courts have not interpreted these provisions similarly. And one area where the courts differ is whether the opposition concept from Title VII and other statutes should apply to the FLSA. While most courts protect what seems to be FLSA opposition,36 some courts take a strict approach and limit the FLSA's protection

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only to those employees who file external complaints.37 One circuit took a middle-ground approach, concluding that internal complaints were protected so long as they were in writing.38 This three-way split will now be addressed.

III. The Three-way Circuit Split

Before Kasten v. Saint-Gobain Performance Plastics Corp.,39 most courts agreed that an employee's internal FLSA complaints were protected;40 however, courts took different routes to reach this conclusion. Some courts focused on what they believed to be the policy behind the FLSA's anti-retaliation provision and concluded that protecting only the actions specified in the provision, which do not include internal "opposition," would frustrate that policy.41 Other courts reached a pro-employee outcome by looking at the provision and concluding either: (1) it was clear that internal complaints were protected; or (2) that the provision was ambiguous and, therefore, the court was free to utilize other tools of statutory construction to conclude that internal complaints were protected.42 Regardless of how the courts determined that internal complaints were protected, that approach was the majority position before Kasten and will likely continue to be after Kasten.43

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A. The Majority Approach-Internal Complaints Are Protected

Before Kasten, most courts agreed that an employee's internal complaints were within the scope of the FLSA's anti-retaliation provision's protection. This subsection of the Article will discuss those opinions and analyze how those courts reached this pro-employee outcome.

1. The First Circuit's Opinion in Valerio. The United States Court of Appeals for the First Circuit was one of many courts of appeals that took a pro-employee position on whether internal complaints were protected under the FLSA.44 In Valerio v. Putnam Associates, Inc.,45 the plaintiff claimed she was entitled to overtime pay and that she was terminated in response to her internal complaint about that issue. The lower court granted summary judgment in favor of the employer on the plaintiff's FLSA and state-law retaliation claims, holding that the plaintiff's internal memorandum was not protected under the FLSA or state law.46

After addressing the amount of overtime pay owed to the plaintiff, the court addressed the retaliation issue 47 The First Circuit acknowledged that the issue was one of first impression in that circuit, and it phrased the issue as being:

[W]hether [the] FLSA's prohibition on terminating an employee who "has filed any complaint or instituted or caused to be instituted any proceeding" under or related to the FLSA protects an employee who has lodged a written internal complaint with his or her employer but has not filed a judicial or administrative complaint.48

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After acknowledging the circuit split, and after acknowledging that this was a "close question," the court concluded that such activity was protected.49

The court disagreed with the United States Court of Appeals for the Second Circuit's opinion in Lambert v. Genesee Hospital,50 which had concluded...

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