EJS, Others File Brief with Sup. Ct. in Kasten v. Saint-Gobain Performance Plastics Corporation

The Equal Justice Society, the Lawyers’ Committee for Civil Rights and four other non-profit organizations filed an amicus brief (download PDF) in the Supreme Court of the United States seeking review of the Seventh Circuit Court of Appeals’ decision in Kasten v. Saint-Gobain Performance Plastics Corporation.

In Kasten, the petitioner argued that oral complaints should be protected under the anti-retaliation provision of the Fair Labor Standards Act, which says that employees who “file a complaint” are protected from retaliation. The Seventh Circuit disagreed, narrowly construing “filing” to include only tangible written documents so that oral complaints are excluded from protection under the anti-retaliation provision. The decision is contrary to the Department of Labor’s interpretation, Congress’s intent in passing FLSA, and the interpretations of many other circuit courts.

In supporting petitioner’s position, the amicus brief focuses on the value of informal problem-solving and the reality that many employers, as in Kasten, not only encourage, but also often require, oral complaints prior to formal filings or litigation. The brief points out the “perverse incentives” of a remedial mechanism that does not protect oral complaints and in the process ends up giving employers incentives to retaliate prior to the filing of a written complaint, when an employee first voices his or her concern. Finally, the brief urges deference to the Equal Employment Opportunity Commission’s and the Department of Labor’s interpretations of the anti-retaliation provision, protecting oral complaints as well as written ones.

The anti-retaliation provision of FLSA was intended to help ensure that employers complied with workplace standards by encouraging individual employees to report grievances without fear of suffering economic consequences such as job loss. FLSA was enacted in part to protect vulnerable populations who might not be able to file a formal written complaint and at the same time would be most in need of the statute’s protections. Victims of discrimination in particular, including those who are illiterate or non-English speaking and unable to file written complaints, should not be afraid to complain orally when their rights are being infringed upon in the workplace.

The other signatories to the brief are the Asian American Justice Center, Asian Pacific American Legal Center, National Partnership for Women and Families, and the National Women’s Law Center.  Pro bono assistance was provided by the law firm Fried, Frank, Harris, Shriver & Jacobson LLP.

6 thoughts on “EJS, Others File Brief with Sup. Ct. in Kasten v. Saint-Gobain Performance Plastics Corporation

  1. I am so happy to see this issue addressed. I was a victim of this type of action; reprisal termination after filing a grievance with my employer. This termination has caused me untold finacial hardship.

  2. I am so happy to see this issue addressed. I was a victim of this type of action; reprisal termination after filing a grievance with my employer. This termination has caused me untold finacial hardship.

  3. It’s long overdue, for employees and others alike, to exercise their right to practice “whistleblower” rights!
    There is entirely too much happening in these companies, that employees are being made to adhere to, or be threatened to loosing their jobs.
    There is also too much immunity given to individuals such as attorney genreals and such, because they sit in these positions.
    If presidents can be impeached, MORE need to be done to stop others “authoritarians”!
    People are being assaulted in many ways and these people of authority, are allowed to assist others like them, in altering documents and getting away with taxpayers loosing out on what they have a right to “monetarily”
    This COVER UP of abuses, MUST STOP!
    These individuals must be stopped from not being made to function in a “MINISTERAL FUNCTION”.
    It’s GREAT, that we have the Federal Goverment to help us in these matters, for it has gone on, for TOO long!

  4. It’s long overdue, for employees and others alike, to exercise their right to practice “whistleblower” rights!
    There is entirely too much happening in these companies, that employees are being made to adhere to, or be threatened to loosing their jobs.
    There is also too much immunity given to individuals such as attorney genreals and such, because they sit in these positions.
    If presidents can be impeached, MORE need to be done to stop others “authoritarians”!
    People are being assaulted in many ways and these people of authority, are allowed to assist others like them, in altering documents and getting away with taxpayers loosing out on what they have a right to “monetarily”
    This COVER UP of abuses, MUST STOP!
    These individuals must be stopped from not being made to function in a “MINISTERAL FUNCTION”.
    It’s GREAT, that we have the Federal Goverment to help us in these matters, for it has gone on, for TOO long!

  5. We, as a nation, will be paying for generations, for the fear-based self-censorship that this decision calls for. The fear of job loss is likely to have contributed to the disaster in the Gulf of Mexico. It is part of what keeps bad policies in place, poor quality leaders in their positions, it is why there is the saying “…its good enough for Government work.” It contributes to discrimination of all kinds. How different this world would be if we were all brave enough to speak up to our bosses, coworkers, friends and leaders when we see and hear things that are wrong, offensive or even dangerous.

  6. We, as a nation, will be paying for generations, for the fear-based self-censorship that this decision calls for. The fear of job loss is likely to have contributed to the disaster in the Gulf of Mexico. It is part of what keeps bad policies in place, poor quality leaders in their positions, it is why there is the saying “…its good enough for Government work.” It contributes to discrimination of all kinds. How different this world would be if we were all brave enough to speak up to our bosses, coworkers, friends and leaders when we see and hear things that are wrong, offensive or even dangerous.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s