In legal disputes, success or failure often turns on the definition of a word. For example, what does the word “file” mean? To some, it refers to that ubiquitous manila or colored organizer that many an office could not survive without. To others, it refers to the act of lodging something with a particular body, agency, or office; e.g., to file a complaint. Lawyers speak of a client’s “file” meaning the papers and records and other materials comprising the client’s case, dispute or matter.
Black’s Law Dictionary defines “file” in this way:
1. “A record of the court. A paper is said to be filed when it is delivered to the proper officer…received to be kept on file as a matter of record;
2. To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference…To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file…as a matter of record…It carries the idea of permanent preservation as a public record.” (Black’s Law Dict. (6ht ed. 1990) p. 628, col. 1, citing City of Overland Park v. Nikias (1972) 209 Kan. 643, 498 P.2d 56, 59.
Once again, Black’s Dictionary seems to sum it all up nicely, simply and succinctly. Oh, but if language were that simple. Words don’t exist in a vacuum, after all. They represent beliefs and intent expressed in a particular context. As I heard an attorney state in a recent oral argument, “Nomenclature matters.” Yes, it does. But, so does context.
During its October term, in an employment law retaliation case that will potentially affect tens of millions of workers, the Justices of the U.S. Supreme Court are grappling over how to define the word “file.” While their struggle may seem like petty semantics, “file” is important in the context of the employment law statute at issue – the Fair Labor Standards Act (FLSA). The case involves an employee who sued his former employer, Saint-Gobain Performance Plastics Corp., alleging that it fired him in retaliation for a series of verbal complaints about the illegal location of time clocks in his factory. Both a federal district court judge and the U.S. Court of Appeals for the 7th Circuit ruled against the employee, holding that the FLSA required a written complaint. The employee’s case invokes FLSA’s anti-retaliation provisions, which seek to prohibit employers from taking adverse actions against employees who raise internal complaints about their working conditions, safety as well as others.
So, the crux of the issue is this: Does the word “file,” by definition, mean to put something in writing as when you complain, or is a verbal complaint enough?
According to an excellent article in Law.com, at oral argument, the Justices peppered both sides with hypothetical situations involving verbal employee complaints. These situations are well worth reading, and illuminate the analytical problem facing the Court and the real-world problem vexing employers. Based on the questioning, the right wing of the Court appeared concerned that too broad a definition might expose employers to retaliation-based lawsuits over nothing more than a verbal reminder about a minor maintenance issue initiated in passing, or even social remarks made outside the office.
The “left-ish” wing of the Court, however, seemed to invoke the history of the FLSA. In particular, many of the workers whose conditions were most improved by the FLSA – and who will likely be most affected by the Court’s ruling – include migrant field workers or others employees working in situations where writing something down was not thought to be all that easy to do. Counsel for the employee, Kevin Kasten, remarked:
“It’s implausible to think migrant workers would leave the field to file written complaints with a government agency,” he said. “Migrant workers, coal miners, factory workers — they don’t write memos. This has to have a broad interpretation. Employees are the engine that drive this act.”
Realistically, both sides have a valid point. In those case, the “right” decision usually is a combination of both viewpoints. Retaliation lawsuits represent a serious threat to employers, particularly smaller employers who often have haphazard or non-existent complaint/response procedures. Employers should have some parameters to rely upon when an employee makes a complaint, which should be easy for all to understand and follow. To preserve the intent of the FLSA, an employee should not have to jump through burdensome or confusing procedural hoops to register a complaint about their working conditions. In and of itself, that smacks of unfairness.
Fortunately, we live in a world where information sharing has been greatly improved over the world that existed when the FLSA was passed in its original form and even when its anti-retaliation provisions were added. Today, as reported at Cyber-Esq., the vast majority of Americans own cell phones. Cell phones are capable of confirming a verbal complaint (at least to some degree of specificity) with a text message or send even longer messages, textual and visual. Mobile, hand-held forms of communication grown more capable and more approachable every day to “average” workers; they are no longer the playthings of the well off. These “average” workers are the very people, as Justice Ginsburg correctly, remarked, the FLSA was intended to protect.
As a matter of fairness, taking into account the intent of the FLSA but also the current technologies available for creating a “writing” without having to leave the field and write a memo, it is not asking too much for employees to lodge some form of a writing that at least memorializes or confirms what may have started out as a verbal complaint. In turn, an employer ought not require or expect the specificity of a pleading, motion or other instrument that transforms a remedial procedure like a complaint procedure into nothing more than a barrier to improved working conditions.
A word of advice for workers reading this article – I have counseled employees for more than a dozen years, and have given them all the same advice when it comes to making a complaint. If a complaint is worthy enough of a verbal reproach to your boss, why not protect yourself and confirm that with something in writing. In past generations, that might have been a letter, a handwritten note perhaps. Today, it can be easily achieved via electronic means. Do yourself a favor and don’t lock yourself into a dispute like this employee did.