The Supreme Court heard arguments yesterday in Kasten v. Saint-Gobain Performance Plastics Corp. You recall that In Kasten, the Court will determine whether an employee's making an oral, instead of a written, complaint of a violation of the Fair Labor Standards Act is protected conduct under the statute's anti-retaliation provision.
October 17, 2010 - UPDATE - Link to Oral Argument Audio Added
Background info on the case:
- Opinion Below
- Petitioner's Brief
- Respondent's Brief
- Oral Argument Transcript
- Oral Argument AUDIO RECORDING
- Notes: Justice Kagan is recused in this case.
Well the oral arguments are in and most people I have talked to about the argument seem to think that a victory for the employer is the most likely outcome. This would turn a lot of precedent on its head as there are many statutes with similar language that have always been interpreted as allowing intra-company oral complaints to be sufficient to activate anti-retaliation protections. However, the current make-up of the Supreme Court has made it clear in previous rulings that judicial activism and lack of deference for precedent is the new norm at the Court.
In some ways this case is a bit of an odd-ball. Over the past couple of years the only employment civil rights laws that have been relatively safe at the Supreme Courthouse have been those protecting employees against retaliation. If the Court rules against employees in this case and holds that the FLSA anti-retaliation provision only protects employees who lodge a formal, written complaint with the government, they will effectively end anti-retaliation protection for many if not most employees in overtime cases and will call into question retaliation protections found in other statutes.
Other Analysis from Around the Blogosphere:
- Supreme Court Hears Oral Argument in Saint-Gobain FLSA Retaliation Case - Workplace Prof Blog
- Does FLSA’s anti-retaliation provision cover oral complaints? The Kasten v. Saint-Gobain oral argument - Ohio Employer's Law Blog