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Prevailing attorney reflects on Supreme Court win in FLSA retaliation case

April 2nd, 2011  |  Lisa Milam

Fresh off a decisive Supreme Court victory in Kasten v Saint-Gobain Performance Plastics Corp, attorney Jim Kaster, a partner in the Minneapolis office of Nichols Kaster, talked to Employment Law Daily about the impact of the High Court’s recent decision and the standard that the majority set forth for determining whether oral complaints are protected activity under the Fair Labor Standards Act’s antiretaliation provision.

In Kasten, the Supreme Court held an oral wage complaint is protected as long as it provides the employer with fair notice that an employee is evoking his statutory rights. (Employment Law Daily’s detailed summary of the High Court’s March 22 ruling can be found here. “This opinion recognizes that the voice of employees is heard by the Supreme Court, whether that voice is uttered orally or in writing,” Kaster noted. The Kasten opinion affirms that “the anti-retaliation provision of the statute actually has meaning,” he said. In light of the Supreme Court’s strong affirmation, he urged plaintiffs’ lawyers that they “better make sure that workers who make a report are not subject to retaliation.”

In the majority opinion authored by Justice Breyer, the Court devised a test for deciding whether an employer was given fair notice: an employee’s complaint must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Will this standard be useful in assessing whether an oral complaint has put an employer on notice that an employee is asserting his FLSA rights?

“The fair notice test is a workable one,” Kaster replied; “both sensible and understandable.” Responding to management attorneys’ concerns that the Kasten test will make it more difficult for lower courts to dispose of cases on summary judgment, Kaster agreed with their analysis. But, he noted, “I regard that as a good thing.”

Kaster rejected the notion that a standard allowing for employers to be put on notice of protected FLSA activity by verbal complaints alone is problematic because, as management-side lawyers point out, oral complaints are more likely to invite fact disputes. “Any concern about verbal complaints being the subject of retaliation claims make this kind of case no different than any other,” he pointed out. “That happens all the time.”

 Kaster also found something to like in the Kasten dissent. Justice Scalia noted that the majority glossed over what, in his view, was the predicate question of whether internal wage complaints — be they oral or written — are even protected under the FLSA’s antiretaliation provisions. “While claiming that it remains an open question,” an irked Scalia wrote, “the opinion adopts a test… that assumes a ‘yes’ answer — and that makes no sense otherwise.” Kaster agreed with Scalia’s conclusion that, after Kasten, any uncertainty over whether internal complaints are protected activity was effectively put to bed.

As reported in the March 31 issue of Employment Law Daily, a federal court in Texas, in Palmer v PSC Indus Outsourcing, LP, already has applied the Kasten test in an FLSA retaliation case and found the employee’s oral complaints gave fair notice to her employer. Given the sheer volume of wage-hour litigation, the implications of the ruling will likely be profound. Yet the reach of Kasten may ultimately extend well beyond the FLSA, Kaster anticipates. “The impact that this case may have beyond FLSA litigation is significant,” he said. “There are some 20 statutes that have anti-retaliation provisions that use the same language.”

James H. Kaster (Nichols Kaster, PLLP) argued the case before the Supreme Court. Nichols Kaster attorney Adrianna Shannon, with assistance from Prof. Eric Schnapper (Univ. of Washington School of Law), was the primary authority of the plaintiff’s brief in the case.