Seventh Circuit Notes Split Re Whether Verbal Complaints Are Protected Activity under the FLSA

Per Kasten v. Saint-Gobain Performance Plastics Corp., --- F.3d ----, 2009 WL 1838291 (7th Cir. June 29, 2009):

The next question pertinent to this appeal is whether unwritten, purely verbal complaints are protected activity under the statute.

Again, we start with the language of the statute. Sapperstein, 188 F.3d at 857. The FLSA's retaliation provision prohibits “discharg[ing] ... any employee because such employee has filed any complaint....” 29 U.S.C. § 215(a)(3) (emphasis added). . . . Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity. The use of the verb “to file” connotes the use of a writing.

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Other circuit courts that have tackled this issue are split. The Fourth Circuit found that verbal complaints were not protected activity in Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.2000). The court recognized that the FLSA's “statutory language clearly places limits on the range of retaliation proscribed by the act.” Specifically, in interpreting the “testimony” clause of the FLSA's retaliation provision, the Fourth Circuit held that the FLSA “prohibits retaliation for testimony given or about to be given but not for an employee's voicing of a position on working conditions in opposition to an employer.” Id. (emphasis added). Although the Fourth Circuit acknowledged that the retaliation in that case-which followed an employee's statement to the company president that, if he were deposed in a lawsuit, he would not testify to the president's suggested version of events-was “morally unacceptable,” the court concluded that a faithful interpretation of the statute did not recognize mere statements to a supervisor as a protected activity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993) (“The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.”) (citations omitted).

Other courts have found oral complaints to be protected activity, but it is difficult to draw guidance from these decisions because many of them do not specifically state whether the complaint in question was written or purely verbal, and none discusses the statute's use of the verb “to file” and whether it requires a writing. See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992) (holding, without discussion of the verbal/written distinction, that plaintiff's apparently oral complaints to supervisors were protected activity); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (holding, without discussion of the verbal/written distinction, that plaintiffs' oral complaints were protected activity); Brock v. Richardson, 812 F.2d 121, 125 (8th Cir.1987) (holding, without discussion of the verbal/written distinction, that defendant's mistaken belief that plaintiff had made apparently oral complaints to supervisors was grounds for suit); Brennan v. Maxey's Yamaha, 513 F.2d 179, 183 (8th Cir.1975) (holding, without discussion of the verbal/written distinction, that employee's “voicing” of concern was protected activity).