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Full 7th Circuit Leaves Verbal Complaints at Employee's Own Risk
The National Law Journal
October 16, 2009
The 7th U.S. Circuit Court of Appeals on Thursday declined to hear a workplace retaliation case en banc, letting stand the panel's decision that the Fair Labor Standards Act doesn't protect "unwritten purely verbal complaints."
But three judges dissented. Judges Ilana Rovner, Ann Williams and Diane Wood said their colleagues were wrong not to hear the case because the decision departs from other circuits' decisions and "the long-standing view of the Department of Labor."
"Oral inquiries, protests, and information supplied to an agency representative play no less an important role in the statutory scheme than do letters, e-mails, and sworn statements," Rovner wrote for the dissenting group in Kasten v. Saint-Gobain Performance Plastics Corp.
Last year U.S. District Judge Barbara Crabb, who sits in the Western District of Wisconsin, dismissed the 2007 lawsuit by Kevin Kasten, an hourly production worker. The judge concluded that Saint-Gobain Performance Plastics hadn't retaliated under the Fair Labor Standards Act when it fired him after he failed repeatedly to comply with policies for punching in and out on a time clock. Kasten alleged that he was being retaliated against for complaining verbally to supervisors on many occasions that the placement of the clock was illegal because it didn't allow workers to be paid for time spent donning and doffing protective work clothing.
A 7th Circuit panel affirmed the lower court ruling, saying the statute doesn't protect against retaliation for verbal complaints. The panel also disregarded a Department of Labor amicus brief on Kasten's behalf, which urged the court to read the phrase "to file [complaints]" broadly as "to submit."
Adrianna Haugen, an associate with Minneapolis-based Nichols Kaster who is representing Kasten, said her client hasn't decided whether to appeal the case to the U.S. Supreme Court. "The dissent has some interesting and invaluable points," she said. Partner James Kaster also worked on the case.
