On March 22, 2011, the Supreme Court came to a decision in Kasten v. Saint Gobain. The Seventh Circuit had ruled that an oral complaint made to an employer who the employee believed was violating the Fair Labor Standards Act (“FLSA”) did not fall under the anti-retaliation provision of the act. The Court reversed the Seventh Circuit and found that an oral complaint was sufficient. This decision raises questions about the standards under which summary judgment could be granted in an FLSA retaliation case.
Prior to this decision, it was easy to determine whether or a filed complaint complied with the standards of the retaliation provision. The Court in Kasten spells out exactly what a complaint which complies with the statute would look like. Essentially the complaint would have to be “sufficiently clear and detailed for a reasonable employer to understand it.” The employee would have to ensure that the employer knew that the employee was asserting “rights protected by the statute and a call for their protection.” The Court states that an oral complaint can achieve this purpose as well as a written complaint. This is probably true. However, allowing oral complaints to the employer as the basis for a retaliation suit can complicate the granting of summary judgment in favor of the defendant.
Summary judgment is an important tool courts use to expeditiously dispose of merit-less cases. It is important to the efficient administration of justice that those cases do not reach trial. The cost of litigation is high and it is an injustice to force a defendant to go to trial against every plaintiff, no matter how unworthy. When a court is determining summary judgment, they look at all of the uncontested facts. If the uncontested facts, along with the allegations by the non-moving party taken as true, show that the moving party is entitled to a judgment as a matter of law, the court should enter summary judgment. This decision could make it near impossible for a defendant to win summary judgment as long as the plaintiff knows how to frame their statement to the court. Of course, when a plaintiff does not allege a statement which complies with the statute, the defendant will win summary judgment. However, when the plaintiff knows what they are doing, the case will likely get past summary judgment and on to settlement or even trial.
What really illuminates this problem however is the fact that the Court implicitly decided to extend the right to complain from just complaints to the government, but also complaints directed towards the employer. While the benefits and drawbacks of this portion of the decision are relevant and raise interesting questions, for the purposes of this discussion I will assume that it is a good policy in general. We, as a society, should desire self regulation. When a company is engaged in wrong doing, we should want the company to correct its behavior without government intervention. Therefore, it makes sense that we would not want a company to retaliate against its employee’s for pointing out that the company is violating federal law. In addition, this policy helps avoid an adversarial relationship between employees and management, which in turn leads to fewer lawsuits.
However, once an employment relationship has been terminated, the former employee and employer are at odds. Unlike a situation where the employee has complained orally to a third party, the contents statement will be contested by the employer and there will be no neutral witnesses. The employer is going to downplay the clarity of the statement and the employee is going to explain how clear the statement actually was. The only real solution in the current system would be to send the issue to a trier of fact to determine exactly what happened.
However, other solutions are possible. For example, one solution would be for Congress to clarify and differentiate between complaints to a neutral third party and complaints to the employer. Oral complaints to a third party could be the basis of a retaliation suit whereas complaints to the employer would have to be in writing. However, this might defeat the purpose of the policy behind allowing complaints to an employer by making it easier to be covered by the anti-retaliation provision when an employee reports violations to the government. This would not apply to all situations of course. For example, in an office setting an employee is probably more likely to send an email to HR to complain about violations of the statute rather than complaining to the boss. However, a large number of the employees covered by the FLSA do not use computers in their job which would preclude them from sending an email to HR. Rather, they would be more likely to complain, orally, to their direct supervisor.
The decision in Kastens may create a situation where employers and employees are caught in a he-said, she-said struggle and as a result are unable to dispose of the case through summary judgment. This raises the cost of litigation and could result in a company settling lawsuits which do not have merit to avoid going through an expensive trial. However, any inefficiency in the litigation phase seems to be outweighed by the gains in efficiency in the grievance stage. Essentially, the danger of going to trial will deter employers from firing employees because they are complaining to supervisors about violations of federal law. This encourages employees to bring complaints to the attention to the company and allows the company to self regulate.