What’s a complaint? Supreme Court to decide

Sonia Sotomayor

WASHINGTON (PAI) - What's a complaint? 

That seemingly obvious question landed at the Supreme Court, in the context of labor law, on Oct. 13, and its decision could affect whether millions of workers can complain about their pay, or lack of it. 

The crux of the issue is the 1938 Fair Labor Standards Act, which established the minimum wage and time-and-a-half pay for overtime for all covered workers. It also says "any" communication from a worker to a supervisor about FLSA violations qualifies as a "complaint" the federal government could investigate. 

Later laws are more specific: Complaints must be, for the most part, to government officials, often after in-house remedies have been tried and have failed. And they have to be in writing. 

That requirement for written-only complaints would hamstring many workers - especially those who don't know their rights, have only a grade-school education or are immigrants - from getting the justice, and the pay, they deserve. 

James Kaster, attorney for St. Gobain Industries and worker Kevin Kasten, told the justices that Kasten complained to his supervisors, verbally, that their time clocks were illegally placed and that as a result workers could be shorted of overtime. 

"'Filing' includes an oral communication, because 'any' means any, which includes formal or informal, written or unwritten communications," Kaster said. 

The law is pretty broad, he told Justice Samuel P. Alito. "Something's going on in the workplace and the supervisor happens to be walking by, maybe a machine is broken...and an employee walks up the supervisor walking briskly by, taps the supervisor on the shoulder and says the company" is breaking the law "because of the placement of a clock," Alito said. 

"Would that be the filing of a complaint?" Alito asked. "Yes, I think it would," Kasten replied. 

And that applies if the complaining worker takes his problem to the government, too, he told Justice Sonia Sotomayor. 

 "What you are doing is stopping the government from saying, 'The only way you can file a complaint with us is in writing,'" she said. And that would occur under FLSA even if the government thought oral complaints "would create havoc," she added. 

Kaster stuck to his stand, replying that "if a person directs a complaint to the government" verbally "and to the responsible party who can do something about it, they're filing a complaint." 

Some of the justices were skeptical. Alito said if the complaining worker gets fired three weeks later, and charges he got fired in retaliation for his verbal complaint, the company could say, in essence, "What complaint?  There's nothing in writing." 

Kaster replied the fired worker could always have a witness, and that such a circumstance was a straight case of retaliation - which St. Gobain and its business allies are trying to get out from under, by requiring all the complaints be in writing. 

Justice Antonin Scalia said he could accept verbal complaints to government agencies - such as the Labor Department - where the law doesn't specifically require written complaints. "But, my goodness, if it could apply to private employers as well, including employers who don't have grievance procedures" of a union contract, "I am very disinclined to think it [the law] could mean an oral complaint." 

"Your honor, I'm just looking at the language" of the law, Kaster replied. The law, he repeated, says "file 'any' complaint and the word 'any' has a particular meaning." 

The Obama administration took the worker's side. Justice Department attorney Jeffrey Wall told the justices that FLSA wasn't the first law that permits "any" type of complaint. It was preceded by the National Labor Relations Act, three years before. 

Carter Phillips, the attorney for St. Gobain, told Justice Stephen Breyer that letting verbal complaints be legal would be "inherently unworkable."  Sotomayor challenged him on that point. 

"What makes this worse than the other statutes?" that allow verbal complaints, such as the NLRA, she asked. "What would create more cases in this area as opposed to some of the other areas?" 

Phillips shot back - after cutting the justice's question off - that "this statute carries a criminal penalty with it." 

The justices will decide the case before next July.

Image: Sonia Sotomayor is one of nine justices who will hear the case Wikimedia commons // CC BY 3.0

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