On October 13, 2010, the U.S. Supreme Court heard oral argument in Kasten v. St. Gobain Performance Plastics Corp. In Kasten, the Seventh Circuit Court of Appeals, in Chicago, held that St. Gobain did not violate the law when it retaliated against Mr. Kasten because he complained about St. Gobain’s violations of the Fair Labor Standards Act (FLSA). FLSA is the federal law that requires employers to pay employees overtime pay and a minimum wage. FLSA has a whistleblower protection section which prohibits employers from retaliating against employees who “file” complaints about violations of FLSA.
The Seventh Circuit held that St. Gobain could retaliate against Mr. Kasten because he failed to put his complaint about FLSA violations in writing. It reasoned that a complaint is not “filed” unless it is in writing. The U.S. Supreme Court will resolve a disagreement between various federal appeals courts over this issue. Some courts have found that employers may not retaliate against employees who make oral complaints. Some courts, like the Seventh Circuit, have found that employees are only protected from retaliation if they make written complaints.
Not all whistleblower protection laws require employees to make written complaints but some may. To be safe, you should contact an experienced employment lawyer before you blow the whistle on your employer’s unlawful activities.