Court grapples with verbal vs. written complaints

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Posted: Oct 13, 2010 3:01 PM
Court grapples with verbal vs. written complaints

If an employee tells a supervisor of a potentially illegal act, can that be considered filing a complaint?

The Supreme Court grappled with that question Wednesday as it tried to determine whether Kevin Kasten should get retaliation protection after he was fired from a Saint-Gobain Performance Plastics facility in Portage, Wis.

Kasten had complained to Saint-Gobain that the time clocks were placed in a location where employees would lose overtime. The company moved the clocks the same day he was fired, and settled with other employees for nearly $1.5 million.

Kasten sued, saying he was fired because he spoke up. He claimed retaliation protection under the Fair Labor Standards Act, but the company said, and the 7th U.S. Circuit Court of Appeals agreed, that to get protection workers who have "filed any complaint" about workplace conditions must have written it down.

Groups who represent workers say that 95 percent of the workers in low-wage industries make wage and hour complaints orally to their employers or supervisors. Kasten's lawyer, James Kaster, said not allowing complaints to be made verbally will disproportionately affect those working manual or low-wage jobs, or those who are illiterate or don't speak English.

"Coal miners, factory workers, line workers, they don't write memos," Kaster said. "With all due respect, your honor, lawyers write memos. People who this act was intended to cover (are) the poorest and the least-educated people in the country."

Kaster argued that one can file verbally, something a couple of justices challenged while listening to his arguments.

"Are you filing your comments right now?" Justice Samuel Alito asked.

"I think I am, your honor," Kaster replied.

"You are? Really?" Alito said.

"I am directing them to the court," Kaster said.

Justice Antonin Scalia called that absurd.

"So you are filing your argument right now," Scalia asked Kaster. "Now, come on, people don't talk like that. That is absurd. You are not filing an argument right now. Nobody uses the language that way."

Kaster insisted that file could mean "submit" or "lodge," and that he was submitting his argument to the court, so "file" could be appropriate.

Justice Anthony Kennedy stopped the interchange with a bit of humor. "I would like to go back to the question Justice Scalia filed just earlier," he said to laughter.

Business groups say requiring the complaining employee to write down the complaint would help them differentiate between gripes and official grievances. It would also keep companies from being ambushed by a fired employee who later complains that he made an official complaint in an off-the-cuff conversation with a boss that wasn't recorded or acted upon, they say.

"'File' always has in mind 'written,'" said Carter G. Phillips, Saint-Gobain's lawyer.

The case is Kasten v. Saint-Gobain Performance Plastics, 09-834.