There is a lot of talk about the Supreme Court’s pro-business bent during the current Chief Justice’s tenure. For example, see “Justices Offer Receptive Ear to Business Interests,” The New York Times, December 18, 2010 (http://www.nytimes.com/2010/12/19/us/19roberts.html). A leading Supreme Court advocate for business interests, Carter G. Phillips, who represents the Chamber of Commerce and argues more Supreme Court cases than any active lawyer in private practice, is said to have boasted recently: “I know from personal experience that the chamber’s support carries significant weight with the justices….Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them….” (Republished in http://www.dailykos.com/story/2011/03/14/956322/-The-SCOTUS,-the-Chamber-of-Commerce,-and-a-Code-of-Conduct). The low point for those concerned with corporate excesses infecting the Supreme Court was the January 10, 2010, Citizens United v. Federal Elections Commission decision (http://www.law.cornell.edu/supct/html/08-205.ZS.html), holding that election laws cannot restrict independent campaign expenditures by corporations, construing such as an improper restriction on free speech precluded by the First Amendment. The Citizens United case was essentially grounded in the notion that corporations are entitled to protection of their individual liberties, like human beings.
But, notwithstanding the early returns, so to speak, we should be careful not to judge the Roberts court too soon. People change…maybe. In any event, in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011) (http://www.supremecourt.gov/opinions/10pdf/09-834.pdf), the Supreme Court got one right, when they very easily could have gotten it wrong, if the Court was indeed inherently skewed to corporations. While I would like to see the result as a product of brilliant advocacy by my former firm, Nichols Kaster (www.nka.com), who represented the Petitioner – which, no doubt, it was – I would like even more to see the result as evidence of fairness toward America’s workers that will manifest itself in important upcoming decisions. Time will tell.
In Kasten, the employee brought an anti-retaliation suit against his former employer, Saint-Gobain, under the Fair Labor Standards Act of 1938 (FLSA), which provides minimum wage, maximum hour, and overtime pay rules; and which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the FLSA, 29 U. S. C. §215(a)(3). (Saint-Gobain had violated the FLSA by placing timeclocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear.)
The employee said he was discharged because he orally complained to company officials about the timeclocks. The District Court and Seventh Circuit rejected the employee’s claims, concluding that the FLSA’s anti-retaliation provision did not cover oral complaints –i.e., that orally complaining is not “fil[ing] a complaint” which engenders the statute’s protection. The Supreme Court vacated the summary judgment against the employee, and remanded to the Seventh Circuit, with not only Justice Kennedy, but Justices Roberts and Alito in the majority, along with Justices Ginsburg, Sotomayor, and Breyer. (Kagan sat out.) Only Justices Scalia and Thomas voted to affirm the Seventh Circuit’s narrow – but not insane – construction of the FLSA, i.e., that the protection from retaliation against a worker who has “filed any complaint” only relates to written complaints.
The Supreme Court found that there was at least one dictionary definition which allowed the possibility that the term “file” a complaint encompassed an oral complaint, stating, “This possibility is significant because it means that dictionary meanings, even if considered alone, do not necessarily limit the scope of the statutory phrase to written complaints.” This was so, even though “[f]ilings may more often be made in writing.” In other words, the Supreme Court grabbed hold of any possibility that the statute could be construed in a way to benefit employees, and chose to construe it in this most protective manner.
Likewise, the Court acknowledged that to “file any complaint” was not language as broad as other language in statutes, which expressly encompassed oral complaints, but admitted a different possibility – “that Congress did not believe the different phraseology made a significant difference in this respect.” The Court concluded, “The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” Again, the Supreme Court gave the employee, Kasten – and all employees – the benefit of the doubt.
In law school, we learn that on summary judgment, the non-moving party is supposed to receive this sort of benefit of all presumptions, and that our system of justice favors the right of parties to be fully and fairly heard. In practice, however, employees’ advocates have wondered if the Supreme Court might be moving toward summary dispositions more often against our clients. In Kasten, though it was not a case about the summary judgment standard, the High Court also reinvigorated the idea of giving plaintiffs a chance to be heard.
Most importantly, the Court rested its holding on the underlying purpose of the FLSA, asking rhetorically, “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?” The Court suggested that “broad rather than narrow protection to the employee” was intended under the FLSA. While holding that employers need to be given “fair notice” of wage complaints to serve as a condition precedent for a retaliation complaint, the Court held that the standard can be met by oral complaints, as well as by written ones.
Predictably, Justices Scalia and Thomas provided a lengthy dissent giving employers the way out – going so far as to argue that “complaints” only cover an “official grievance filed with a court or an agency, not oral complaints.” Their interpretation ignores the purpose of the FLSA and the realities of the workplace – where most workers subject to wage violations are unsophisticated, and can suffer reprisal long before they make it to a court or government entity with their concerns.
But, the importance of Kasten is not that two justices on the farthest right margin of the Court did not side with employees – but rather, that all of the other justices did the right thing. In the coming months, the Court will decide important cases for employees – the AT&T Mobility v. Concepcion and the Wal-Mart v. Dukes matters, which will resolve, for all practical purposes, to what extent class actions are available to employees (and others) whose rights have been violated. Will employees have the opportunity to level the litigation playing field with employers possessing far superior resources, preventing employers from dividing and conquering, and limiting the windfall employers receive because so few employees have the resources and courage to step forward alone? Indeed, the Court heard oral argument in the Wal-Mart v. Dukes case last week, and Justice Scalia again was transparent in his disdain for the employees’ case. Let us hope that, once again, in deciding these cases, as in Kasten, Justices Scalia and presumably Thomas will be in the dissent, and the rest of the Supreme Court again will consider, first and foremost, how workers in America will be affected every day by the decisions they render.
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