Similar to statutes such as Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), all of which contain anti-retaliation provisions, the Fair Labor Standards Act (FLSA), which protects employees with respect to wages and hours, also contains such provision. Unfortunately, not all of these provisions are identical, which has led courts to interpret them differently, granting more protection under some provisions and less protection under others. ...
This Article will examine the FLSA's anti-retaliation provision, and it will focus on whether its language covers internal complaints. Section II will examine the text of the provision and compare it to other employment-related, anti-retaliation provisions. Section III will examine the circuit split regarding whether internal complaints are protected under the FLSA. Section IV will focus on the Court's opinion in Kasten and on Justice Scalia's dissenting opinion. Finally, the Article will argue that although the Court in Kasten provided more protection to FLSA plaintiffs, it did so despite the FLSA's anti-retaliation provision's narrow language, which suggests that internal complaints are not protected. Did the Court put policy ahead of statutory language, or is the FLSA's anti-retaliation provision broad enough to protect internal complaints? Although most courts agree that the Court "got it right," it is possible the Court did so only by stretching the FLSA's text just about as far as it possibly could.
Rosenthal, Lawrence D.
"The Supreme Court's Interpretation of the Fair Labor Standards Act's Anti-Retaliation Provision in Kasten v. Saint- Gobain Performance Plastics Corporation: Putting Policy Over Plain Language?,"
Mercer Law Review: Vol. 64
, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol64/iss2/5