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Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2009 - March 22, 2010

Today the Supreme Court granted certiorari in one case of interest to the business community:

Fair Labor Standards Act—Retaliation—Oral Complaints

The Fair Labor Standards Act (“FLSA”) provides a cause of action to an employee who suffers an adverse employment action “because such employee has filed any complaint” under the FLSA. 29 U.S.C. § 215(a)(3). Today, the Supreme Court granted certiorari in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, to decide whether an employee states a claim for retaliation under that provision based solely on an oral complaint made to the employer. The case is important to employers, both because the Court’s resolution of the issue will affect their potential liability for retaliation claims under the statute and because establishing and operating legally sufficient oral-complaint procedures could be very complex.

In Kasten, the plaintiff filed suit against his former employer under the FLSA after he was terminated for violating the employer’s time-clock-punching policy. The suit alleged that he was terminated in retaliation for his oral complaints, to supervisors and human resources personnel, that the placement of the time clock was illegal. The district court granted summary judgment to the employer, holding that, although intra-company written complaints could form the basis for a retaliation claim, oral complaints could not.

The Seventh Circuit affirmed. While acknowledging a division of authority on the issue, the court of appeals reasoned that the term “filed” implies a written complaint and that oral complaints therefore could not support a cause of action. Three judges dissented from the denial of rehearing en banc, arguing, among other things, that the court’s decision is inconsistent with the position of the Department of Labor.

Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on May 13, 2010, and amicus briefs in support of the respondent will be due on June 14, 2010. Any questions about the case should be directed to Robert P. Davis (+1 212 506 2455) in our New York office.

Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

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Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 

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