John G. Roberts, Jr.: We will hear argument next in Case 09-834, Kasten v. Saint-Gobain Performance Plastics Corporation. Mr. Kaster.
James H. Kaster: Thank you, Mr. Chief Justice, and may it please the Court: When Kevin Kasten told his employer that the location of the time clocks was illegal and that if they were taken to the court they would lose, he filed any complaint within the meaning of the 215(a)(3) under the Fair Labor Standards Act, because filing includes an oral communication, because "any" means any, which includes formal or informal, written or unwritten communications. And the words in the statute were designed to have a broad construction under section 2 of the statute 202 and under Mitchell v. DeMario and the Tennessee Coal case. I would like to begin with the Tennessee Coal case, Tennessee Coal v. Muscoda. The Court interpreted "work" in a broad fashion to include the time in a mine when workers were moving from one place to another, not actually engaged in physical labor. In interpreting work that way, the Court said that the act is not to be interpreted in a narrow, grudging fashion.
Samuel A. Alito, Jr.: Let me give you this example. Suppose a company has an established policy that if you want to make a complaint, there's a particular supervisor you should go to. And let's say they say you can make this complaint in writing, you can make it orally. Now, there's -- something's going on in the workplace and the supervisor happens to be walking by, maybe a machine is broken, an employee has been hurt, and an employee walks up to the supervisor who is walking briskly by, taps the supervisor on the shoulder and says the company is violating the Fair Labor Standards Act because of the placement of a clock. You said that filing has no formality requirement. Would that be the filing of a complaint?
James H. Kaster: I think it would, Your Honor. I don't think that the fact that the employer has a policy that says you do it on Tuesday morning would control what the statute says one way or the other, so I think it would constitute a filing.
Sonia Sotomayor: So you mean that if the Government says you've got to file a complaint with us by either calling us or submitting something in writing, and at a cocktail party a worker goes up to a Government employee in that agency, and says, you know, my company is violating the law. That that's enough?
James H. Kaster: I don't -- you know, I don't believe that that's -- in the context of a non-work environment, Your Honor, I would note that, I don't know exactly the answer to the Court's question, to be honest.
Sonia Sotomayor: The reason I'm asking that question is related to Justice Alito's question, which is, what does filing a complaint mean? Does it have to be relative to the procedures adopted by the person that you are reporting this to?
James H. Kaster: Filing means directing it to somebody who can do something about it. And it doesn't necessarily have to be.
Sonia Sotomayor: Well, at a cocktail party that employee may be there on personal time, but when he goes back to work the next morning he could do something. Is that enough?
James H. Kaster: Well, it may be. If it's directed towards the responsible party, then it would be filing a complaint. So it could occur outside of work--
Sonia Sotomayor: So what you are doing is he is estopping the Government from saying, the only way that you can file a complaint with us is to do it in writing. We are now forcing the Government to adopt an oral procedure even if it chose not to? Even if it thought an oral procedure would create havoc, et cetera, et cetera?
James H. Kaster: --If the person is directing the complaint to the Government and communicates that to the responsible party who can do something about it, I think that they are filing a complaint, Your Honor.
Samuel A. Alito, Jr.: It's one thing to say that filing doesn't necessarily mean that something is written, although that's usually what the word means, isn't it?
James H. Kaster: It can often mean a written communication.
Samuel A. Alito, Jr.: Are you filing your comments right now?
James H. Kaster: I think I am, Your Honor.
Samuel A. Alito, Jr.: You are? Really?
James H. Kaster: I am directing them to the Court.
Samuel A. Alito, Jr.: That's the ordinary usage of the word. But to say that it includes no degree of formality, that's your argument?
James H. Kaster: Well, Your Honor, I would say there are no formal requirements for the filing.
Samuel A. Alito, Jr.: If that's the law and the employee gets fired and the employee says, well, this was done in retaliation for my having filed an FSLA complaint three weeks ago, and the employer says what complaint? We have no record of any such complaint and the employee says, oh, yes, I said it orally to a supervisor who was passing by and my buddy Joe was there and he's going to corroborate this. So now we have a trial about whether a complaint was filed?
James H. Kaster: You might have a trial, Your Honor, depending on the circumstances. There might be one. The thing is that that's no different from any other retaliation case. They are trying to establish an exception to the rule that retaliation occurs in verbal forms. The communication, the underlying protective conduct occurs in verbal forms all the time. They are trying to establish the exception here. And I would note that even under the National Labor Relations Act in Scrivener, filing charges includes the verbal communications that are antecedents, the predicates to filing a charge.
Samuel A. Alito, Jr.: With whom?
James H. Kaster: With the responsible party who can do something about it. I would note also, Your Honor--
Antonin Scalia: Well--
James H. Kaster: --that Kevin Kasten doesn't have an office. In terms of the formality of communication, there is discussion about the fact that this occurred in a hallway outside of the place where they walked in and out of the factory. He doesn't have an office. That's where he communicates with people.
Stephen G. Breyer: Why do you feel the need to go beyond, say, what the AFL-CIO identifies as a normal oral failing -- filing? They use language like, at the initial stage of the grievance procedure, there is confrontation with an eye to fact finding, and the dispute is joined when the employee or the steward or supervisor come face-to-face to identify, to discuss, and hopefully to resolve a problem. Now that's a formal kind of relationship. It doesn't involve a cocktail party, and yet it is done orally. And there is a tradition as to how that works. But from you've said, I gather that you want to go well beyond that and provide that cocktail parties -- perhaps not cocktail parties, but just a tap on the shoulder would be sufficient, where I take it that would normally be sufficient in the grievance process.
James H. Kaster: The grievance process, Your Honor, a grievance process is a formal process, and so I wouldn't compare the average workplace--
Stephen G. Breyer: All right. Suppose I think that that provides a good precedent for -- for oral filings. What happens then? What am I supposed to do in your case?
James H. Kaster: --Your Honor, in the general proposition we would be accepting of the Scrivener rule that the Court adopted in the '70s, that is that the filing of a charge includes those things that happened orally prior to and around the time of the filing of the charge. That's what this is about.
Stephen G. Breyer: Yes, we are talking about a filing. In the grievance process -- I don't want to repeat it, but it seems to me form having read the brief that filing takes place without writing, provided that there are these other safeguards which are described. Now, I want to know in your opinion, is there a reason for not importing that into this system? I take it you win the case -- or maybe you lose it, I don't know how it works on the fact. I don't know what the filing was.
James H. Kaster: In terms of the formality of requirements, the Court may adopt formal requirements. The employer certainly did, Mr. Kasten followed those. What I am looking at are the words of the statute that cover normally--
Stephen G. Breyer: There is a word "filing" in the AFL-CIO statute as well. So I am looking for a way of interpreting the one in light of the other. Do you favor that? Are you against that? If so, why or why not?
James H. Kaster: --In terms of the procedure that they adopt, Your Honor, that may be an acceptable procedure. The thing that I am looking at is the statutory language in the case.
Ruth Bader Ginsburg: And there wasn't -- he didn't invoke the grievance procedure.
James H. Kaster: He didn't--
Ruth Bader Ginsburg: In this case, he didn't invoke the grievance procedure.
James H. Kaster: --That's correct, Your Honor.
Ruth Bader Ginsburg: So that would keep you out, if that were the test, that you have to formally invoke the grievance procedure. But we are told that every other time the word "file" is used in this Act, Fair Labor Standards Act, it refers to a writing. And so you are urging a meaning that deviates from the standard meaning of the term in the very Act at issue.
James H. Kaster: I don't think I am doing that, Your Honor, with all due respect.
Ruth Bader Ginsburg: Is there another provision where the word file is used to mean something other than a writing.
James H. Kaster: It means, according to the first enforcement action back in 1961, it means submit or lodge, Your Honor. I would note that the defendant's own policies use it to describe a verbal communication by protecting against retaliation for somebody who has filed a complaint for sexual harassment. They have used it in a manner that -- as an example to obviously include both verbal and written communications. I would note there was a procedure in place here, Your Honor, that was the policy manual. This -- there was no grievance procedure for Mr. Kasten. He did not have a--
Antonin Scalia: --That's -- that's the problem. I mean, you can talk about a grievance procedure. I suppose there's always one in -- in companies that -- that are unionized, but an awful lot of companies aren't. Your -- the -- the Respondent is -- is going to argue that this statute doesn't apply to private filings of complaints anyway, that it relates only to the filing of a complaint with the government. And that -- that's a new -- a new point in this case, and normally I would not be disposed to consider it. My problem is, I cannot decide on -- on the question of whether filing means filing only in writing or also includes verbal filing, without resolving that other question. That is to say, if indeed the complaint has to be quote, "filed" with the government, I'm inclined to think that an oral complaint pursuant to procedures established by the agency which permit an oral complaint, even a complaint by telephone that would be okay. But my goodness, if it applies to private employers as well including employers that have no grievance procedures, including employers who have employees who go to cocktail parties, I am -- I am very disinclined to think that it -- that it could mean an oral complaint in -- in that context.
James H. Kaster: --Your Honor, I'm just looking at the statutory language -- file "any complaint". It's important -- the word "any" has a particular meaning. I would not that if--
Sonia Sotomayor: What does file -- what is the meaning of "filed"?
James H. Kaster: --It means to submit or lodge, Your Honor.
Antonin Scalia: So you are filing your argument right now. Now come on, people don't talk like that.
James H. Kaster: I think--
Antonin Scalia: That -- that -- that is absurd. You are not filing an argument right now. Nobody uses the language that way.
James H. Kaster: --If I submit or lodge, that is the -- and it's directed at a particular -- I have to be asserting a statutory right.
Anthony M. Kennedy: Well, I'd like to go back to the question--
James H. Kaster: I am not asserting--
Anthony M. Kennedy: --I would like to go back to the question Justice Scalia filed just earlier. [Laughter] What -- what would you say about his point that it seems to me had substantial merit? It -- it's really our determination -- our interpretation of what filing means might well depend on whether filing in -- or a complaint includes intracompany complaints, the grumbling of an employee and so forth; and I recognize this -- this argument comes up late. Has it been addressed in any of the other circuits?
James H. Kaster: --Yes, Your Honor. There has been -- a number of the circuits have interpreted this statute and included -- the Ninth Circuit, the First Circuit, the Tenth Circuit have all--
Anthony M. Kennedy: All have said that intracompany complaints--
James H. Kaster: --Intracompany complaints; that is true as well in the Sixth Circuit. And it's easier to talk about the cases where that hasn't been true -- in Memphis Barbecue, the Fourth Circuit; in Genesee Hospital, the Second Circuit. Memphis -- the Memphis Barbecue case really addresses the testimonial clause. Genesee Hospital is the only case in the Second Circuit where they have held that all complaints need to go to the Department of Labor. The one thing I would say about that particular argument, Your Honor. Is it makes superfluous instituted proceeding. It makes superfluous instituted proceeding which -- or cause to be instituted. If you file a complaint -- it -- then -- with the Department of Labor, their argument is, and I think it's true, that you institute a proceeding. So the statute would be redundant, and "file any complaint" would cover a null set.
Antonin Scalia: I'm not sure that's true. You -- you can complain orally to somebody at the Labor Department who decides that the complaint isn't serious enough to -- to warrant commencing a proceeding. I mean, if you go in and insist, I -- you know, I want to begin a proceeding, that's -- that's something else. But you can file a complaint orally without -- without doing that, it seems to me.
James H. Kaster: Well, Your Honor, if you have made the phone call and started the process I think you have instituted a proceeding. Now whether it gets -- at what stage of formality it gets to, I'm not sure, Your Honor, but I think you have begun the process of instituting a proceeding or causing it to be instituted. That's one. The other thing I--
Antonin Scalia: Not if it's never instituted. If no proceeding is ever instituted, you can hardly be accused of having caused a proceeding to be instituted.
James H. Kaster: --There's a--
Antonin Scalia: So if you make an informal complaint and it doesn't go any further, and they ask -- "You know, do you want to -- No, I don't want to start a proceeding, but -- but this company is just, you know, it's acting improperly, you guys ought to look into that. " That's -- I'm 00 I'm prepared to say that's filing a complaint, if you are only talking about filing complaint with the government. But if you are talking about oral filings of the complaints with employer, I am very troubled.
James H. Kaster: --Well, Your Honor, I'm going to reserve the rest of my time for rebuttal.
John G. Roberts, Jr.: Thank you, counsel. Mr. Wall.
Jeffrey B. Wall: Mr. Chief Justice, and may it please the Court: A number of the Court's questions are focusing on some of the practical difficulties here. The Government wants to start by pointing out there are a number of statutes, 20 or more, that have similar anti-retaliation provisions. Most of those statutes cover all the complaints, either because Congress has said so in administering, agencies have said so or the courts have said so. And the kind of practical difficulties that the court is raising have not proven unworkable under any statutory schemes. The Respondent can't point to a single other statute addressing these kinds -- this labor context that has been narrowed -- excuse me -- to cover only oral complaints. What we're--
Antonin Scalia: This is one of the oldest, though, isn't it.
Jeffrey B. Wall: --Yes. I mean, it--
Antonin Scalia: Is it the very oldest? It may well be the very oldest. You are talking about a really old fogey Congress that -- that passed this thing.
Jeffrey B. Wall: --Justice Scalia, it's not the older. It was model on the NLRA, which is even older. For instance, the NLRB has found that if, you know, employees are complaining to each other, that they can't be discharged under the NLRA's anti-retaliation provision, or if an employee orally says to his employer, I'm about to go to the Board and tell them you are doing something unlawful, the Board has said you can't be discharged.
Antonin Scalia: What -- what is the language in those statutes? All those statutes use the language "file a complaint"?
Jeffrey B. Wall: The language in the NLRA is "file charges" or "give testimony". So, instead of filing a complaint, it says "file charges". But the language in many of these statutes, and they are cited in all of the briefs, is extremely similar. They refer to filing complaints or charges, instituting proceedings. As you pointed--
Ruth Bader Ginsburg: Are you -- you -- are you urging that if you just tell a coworker, that that's enough? I thought the whole idea is to give the employer notice that something is amiss. So, how would telling a coworker serve that purpose?
Jeffrey B. Wall: --It wouldn't under this particular statute, Justice Ginsburg. I didn't mean to imply under the FLSA. The FLSA anti-retaliation provision does not have an opposing any practice clause in the way that some civil rights statutes do like Title VII. So, it does require submission of a complaint to an employer, but that could take many forms. And as you pointed out, Justice Scalia, in this particular context, filing something orally makes perfect sense. We are not -- we are talking about the kinds of industries, truck drivers, coal miners and migrant workers where that's a perfectly normal use of speech. Oral communication--
Stephen G. Breyer: Yes. Fine. It's a perfectly normal use of speech, I accept that. But what is it that would surround this use of speech on a particular occasion with enough formality that we know it isn't something that could pass unnoticed and bring in a whole lot of things like the cocktail party example, et cetera? I noticed there was a paragraph in the AFL-CIO -- that's why I brought it up. Is that the right standard? What we say here may take effect or have influence, so -- so I want to say it correctly. What kinds of oral complaints count as filing a complaint?
Jeffrey B. Wall: --Justice Breyer, I don't think the Government has any objection to that standard. Although I do think--
Stephen G. Breyer: But I would like more than that. The Government sees these statutes as a whole, so I would like the Government's assistance on what words to write to be able to get this right so it will not be too formal, it will not be too informal, it will do the job.
Jeffrey B. Wall: --I -- I think the kind of indicia or formality you are talking about are signs that the employer has submitted to his employer an assertion of statutory rights under the FLSA. I think those are the two things that the lower courts have consistently looked to. And I think those indicia of formality are a good sign that the employer has, but they are not the only sign. If I walk into the happy hour and I have actually written down on a form that my employer promulgates and I hand it off to my supervisor--
Stephen G. Breyer: All right. Now, fill in this blank then, there must be surrounding the oral complaint sufficient elements of formality such that--
Jeffrey B. Wall: --That the employer has -- the employee has indicated to his employer, someone in supervisory authority, that he is asserting statutory rights under the FLSA.
John G. Roberts, Jr.: So if he just says to the employer, "You know, I think we ought to have a little more time to put on our gear. " is that an assertion of statutory rights under the FLSA?
Jeffrey B. Wall: Mr. Chief Justice, I think that's a difficult question. I don't think it is presented here, because this isn't a content case.
John G. Roberts, Jr.: Yes, I know, but the idea -- one of the objections to your position is that it's going to be very hard to figure out in any particular case what is a filing an oral complaint under the FLSA, because one, it's got to be reconstructed, unlike the situation where you had have a government agency that's doing it, or you have a written complaint; and second of all, it's -- it's unclear perhaps for the employer to know that he's being charged with a violation of the FLSA.
Jeffrey B. Wall: But that question comes up in every case, whether the complaint is written or oral to the Government or an employer. If I write down--
John G. Roberts, Jr.: Well, if it's written -- if it's written, you have got a document that people can look like -- look at, whether it's the NLRB or a court, that -- that they can look at and say, yes, this is a -- an assertion of a violation.
Jeffrey B. Wall: --If I write down on a form promulgated by my employer I don't like where the time clocks are or I think the time--
Stephen G. Breyer: --But it's on a form. So we have got that -- that helps a lot. Also an employer could have a notice. Notice, if you really are upset because you think there is a violation going here, go to this microphone which is directly connected to the complaint department and cite the statute. That would work, too. [Laughter] But -- but there have been years and years of -- you have just said, of statutes like this, you say that many of them operate orally. All right. What kind of thing, if you can help, maybe you can't -- which is dangerous, but then we just try to do our best, and we don't have the labor law experience necessarily, but -- but what is the -- the form of words that we can use to separate the wheat from the chaff?
Jeffrey B. Wall: --Justice Breyer, I'm sorry if -- if -- if it the formulation I have given you is not helpful, but in -- in these statutes where either by expressed language or regulation, so for instance, the Surface Transportation Assistance Act, and ADA or OSHA, the -- the language varies from regulation to regulation. In some of them it says lodge complaints, and some of them it says make a complaint. But what the courts have--
Stephen G. Breyer: Let me see if I can look, because in about 2 minutes you are going to hear, I suspect and the other side, say see, see, we told you, that's why you have to have it in writing.
Jeffrey B. Wall: --Again -- and agencies have put these in writing, so at footnote 6 on page, I think it's 16 of the Government's brief, we have the OSHA regulations. The STAA regulations appear at page, I think it's 21--
Samuel A. Alito, Jr.: It would really be helpful if you could just give us the rule that you think should apply. Is the rule -- your -- your -- Mr. Kaster's argument seems to be anything goes, any oral communication to a supervisor goes.
Jeffrey B. Wall: --I think--
Samuel A. Alito, Jr.: Let me go back to the example I started out with. A worker has been hurt, a supervisor is going to attend to the hurt worker, and an employee says, the company is violating the FLSA. And the supervisor says, don't tell me, and don't tell me about it now. I'm doing something else. That's enough?
Jeffrey B. Wall: --I think the test, Justice Alito, is whether the employee has submitted a complaint to his employer that has put the employer on notice that that employee is asserting statutory rights under the FLSA, claiming that he is legally entitled to something he is not receiving. If the supervisor walks in the next morning and says to his boss, yesterday morning while I was attending to the plant accident, Joe told me that the time clocks are in the wrong place. He's about to file. I think we need to fire him, he's a troublemaker. That employee has stated a claim to the FLSA.
John G. Roberts, Jr.: Well, what if he goes to the boss and says, boss, you ought to do something, that railing is -- is pretty dangerous over there.
Jeffrey B. Wall: Again--
John G. Roberts, Jr.: Is the boss supposed to know, well, he is asserting statutory rights under the FLSA?
Jeffrey B. Wall: --Mr. Chief Justice, I think there probably not. The employee--
John G. Roberts, Jr.: That would not be filing a complaint?
Jeffrey B. Wall: --I mean, I think as a content case, which it is not, it's unlikely that that is. Saying that you don't like something or you think it is unsafe is not actually saying you have are asserting a right to have it differently. But those are content cases. And here there is no question the Petitioner asserted his statutory rights to a number of different people at the company. What Respondent is saying is he didn't do it the right way. If he had done exactly what he did in exactly the same words, but he had done it some other way, then it would be covered. So, this is a form case.
Ruth Bader Ginsburg: What did he do? What did he do specifically? I mean, you are saying that -- that the employer has to know that he is making a complaint under the Act. So what -- and you said here are the facts that was clear that he did.
Jeffrey B. Wall: If you credit his allegations, which you have to at this point, because the district court granted summary judgment on a legal ground, what Petitioner says he did is he went to his supervisor. He said the time clocks are in the wrong place. We are not getting paid for all of our time. And then he went up the ladder to human resources personnel at the company, and he said exactly the same thing, and he said I thinking about challenging you on it in court, and if I challenge you, you will lose. Now, whatever the test is, that clearly meets the bar for asserting statutory rights under the FLSA. And I think what is important to not is that this Court has consistently, from the 1940s on, both with respect to the FLSA and anti-retaliation provisions more generally in Title VII and other statutes, it has always given them a broader reading to effectuate their purposes.
John G. Roberts, Jr.: Mr. Wall, I -- this is just a factual. Were you saying that the employee has to know that he is submitting a claim of statutory violation or the employer?
Jeffrey B. Wall: I think what the lower courts have said, and I think this makes sense, is that the question of whether a reasonable, objective person would have understood the employee to have submitted a claim complaint. So if the employee does everything he can to put the employer on notice, it's not a defense for the employer to say that subjectively he didn't understand it to be a complaint.
Anthony M. Kennedy: In those circuits where they allow intercompany complaints that are oral, can you give me any sense of how often this leads to claim for retaliation? I mean, are they in the hundreds or.
Jeffrey B. Wall: I can't, Justice Kennedy. All I can tell you is that the vast majority of circuits have found that intracompany complaints are protected and--
John G. Roberts, Jr.: Thank you, counsel.
Jeffrey B. Wall: --Thank you. Mr. Phillips?
Carter G. Phillips: Thank you, Mr. Chief Justice, and may it please the Court: Justice Breyer, I will say to you what you asked me to say, which is I believe if you get done listening to my colleagues on the other side, it will be quite clear that this is an inherently unworkable standard that they asked us to adopt under these--
Sonia Sotomayor: So why is it inherently unworkable here in any greater extent that it is unworkable in all of the other statutes where oral complaints are permitted? What makes this worse than these other statutes? What would create more cases in this area as opposed to some of the other areas? Oral complaints are explicitly--
Carter G. Phillips: --I don't know that it is necessarily any worse in this particular context. I do think what it suggests is that the Congress that looked at this problem, which as Justice Scalia pointed out was the 1938 Congress, and what that Congress was saying is we are taking a very dramatic step. We are moving in the direction of Federal regulation--
Sonia Sotomayor: --This is the -- this was the Lochner era where they weren't even sure they could do this. But why should we read their language with a narrow reading of any complaint?
Carter G. Phillips: --Well, I think you have to read their language as the way it was written and as the way they would have understood it at the time, which was to file any complaint, which as it would have been understood in '38 and frankly after that, when you file a complaint that usually entails some notion of formality and when you put it in the context of a specific provision where it is not only filing a complaint, but institute any proceeding, caused any proceeding to be instituted, justify any proceeding.
Sonia Sotomayor: What grievance -- would the bringing of a grievance, the example that Justice Breyer suggested, an employee goes to his union and says, they are violating the statute. Let's grieve it. And according to the proceedings established by the employer, they meet with the employer, and the employee does everything in the grievance and they now fire that employee. Under your reading, that's not instituting a proceeding?
Carter G. Phillips: No, because a proceeding is understood and it's used consistently in the FLSA as an official action by a government agency. So no, I don't believe that is instituting a proceeding.
Sonia Sotomayor: Then we have to address your second question, not the first. You are saying the oral wouldn't work in there?
Carter G. Phillips: Right. The oral doesn't work in that particular context.
Sonia Sotomayor: Would it work if they instituted a proceeding orally and the proceeding required itself to start orally?
Carter G. Phillips: I don't -- the truth is, if the employer envisions in its mind that it is instituting a proceeding, that's still not a proceeding within the meaning of what Congress meant in 1938. It had in mind an official action by a government agency. And no private employer is ever going to institute a proceeding within the meaning of that particular scheme. You know, it's extremely important in the context of this particular statute, and the one thing I should have answered, Justice Sotomayor, to your question is, what's different about this statute than any other? This statute carries a criminal penalty with it. And no other retaliation statute except for one--
Ruth Bader Ginsburg: But there is a protection built in, Mr. Phillips, it says it's criminal liability only if it's willful. And on the civil side, the civil liability under the Fair Labor Standards Act, you certainly don't have to prove willful, you just prove a violation.
Carter G. Phillips: --Right, but the reality is that this Court held in the CIT case that the Court would not construe this statute broadly in order to expose people to potential criminal liabilities.
Antonin Scalia: Wouldn't any retaliatory action be willful? I mean, to say it's in retaliation means you are firing this person because of the complaint.
Ruth Bader Ginsburg: The question is whether the violation is willful. The willful qualification in the criminal context is are you willfully denying your workers the wages and hours the statute requires?
Carter G. Phillips: Right.
Ruth Bader Ginsburg: Nothing to do with retaliation.
Carter G. Phillips: No, I -- well, it does have something to do with retaliation, but, Justice Ginsburg, it seems to me it's all of a piece, though. Because the reason why you can be comfortable with a willfulness standard even which extends to conscious disregard beyond the intent as well, but the reason why you can be comfortable with that is if you look at the way the statute is crafted in terms of the retaliation provision itself, it speaks specifically to formal actions that are taken, the filing of a complaint, the institution of a proceeding.
Ruth Bader Ginsburg: Do you know, how common is it to have criminal prosecutions under this section of the Fair Labor Standards Act?
Carter G. Phillips: I don't believe -- I mean, it's not a null set, but I don't believe it's a particularly, I don't think it's a large number of proceedings. But it seems to me, though, in trying to understand what the Congress of 1938 would have done and trying to understand why it would have approached this in a narrow way, and why this provision is aimed not generally to protect workers, but is aimed really to make sure that information gets to the Federal Government.
Ruth Bader Ginsburg: I thought that the whole idea of this statute is to protect the workers, and I would like you to address particularly the amici's point, that this statute in 1938 affected people -- many were illiterate, they couldn't write a complaint, many were immigrants who weren't familiar with the language, for that universe of people, wouldn't Congress have meant that all complaints are okay?
Carter G. Phillips: Let me start by saying, first of all, even if the FLSA has broadly a pro employee protective purpose, it's still important to recognize that the retaliation provision we are talking about here specifically did not provide a cause of action, a private cause of action until 1977. So that when Congress enacted this statute in 1938, it didn't say boo about allowing the employees to show up in court and to assert their rights. This is not part of that expansive, grant rights to the employee's portion of this legislation. And then second, Justice Ginsburg, with respect to the specifics of what did Congress have in mind, it seems to me the better way to evaluate this is not did Congress have in mind a group of illiterate employees or not, but what language did Congress use in trying to formulate the specific provision that gives rise to the protections against retaliation.
Antonin Scalia: Your case would be a lot easier if you didn't try to have it both ways, to say, number one, it only applies to filing a complaint with the Government. And number two, you say, it also only applies to written complaints to the Government. I mean, why don't you--
Carter G. Phillips: I will take the former argument, Your Honor.
Antonin Scalia: --Why don't you give a break to the illiterate and let them file oral complaints with the Government?
Carter G. Phillips: Well, my guess is the truth is they will be able to file oral complaints with the Government because, the only thing that is left open is the precise hypothetical you gave, Justice Scalia, where you make an oral complaint and nothing gets instituted in those circumstances. And it seems to me, clearly, in the Federal Government's authority to simply adopt a rule that says any time anybody makes an oral complaint to us we will institute a proceeding. And if the agency adopted that view, I don't think there is anything we could do about it.
Antonin Scalia: Suppose it says we won't necessarily institute a proceeding, but we will regard it as a complaint?
Carter G. Phillips: I -- I mean, my own view is the better way of reading -- that is a much closer case, I will concede that, Justice Scalia. My own view is that when you talking about file a complaint, that is just not the way Congress ordinarily thinks about file a complaint. File always has in mind written -- I'm sorry.
John G. Roberts, Jr.: Justice Scalia's hypothetical, unless I am misremembering, I think, is very common. For example, the EEOC, people often file complaints and then the EEOC considers whether it's going to institute a proceeding or not.
Carter G. Phillips: Right. And I'm not quarrelling with that. I mean, I understand that. And the truth is, you know, I think for another day the issue will arise and the Court can decide whether or not a mere oral complaint to a government agency is sufficient to file a complaint within the meaning of this statute. I do think it is fundamentally important for this Court to decide the underlying question of whether oral complaints are sufficient only in the context in the first instance of deciding whether or not it has to go to a government agency as opposed to any kind of private or intracorporate activity.
Ruth Bader Ginsburg: How does it work with respect to the more recent statutes? Title VII, The Age Discrimination Act, Disabilities Act?
Carter G. Phillips: In terms of retaliation, Justice Ginsburg?
Ruth Bader Ginsburg: Yes. If you have not filed anything with the Government, but you have to your supervisor opposed a practice.
Carter G. Phillips: No, the vast majority of those statutes talk about any action that -- opposing a practice, and therefore they deal with a lot of intracorporate activities, and obviously at some point there is an issue as to sort of what the employer's intent is and how far it got up the ladder--
Ruth Bader Ginsburg: But is it -- so in those cases I think you are quite right, intracorporate complaints count as opposing any practice. Has there been any huge problems about people saying, oh, I made an oral complaint to my supervisor, and supervisor said I never heard of it?
Carter G. Phillips: --Well, I suspect that issue comes up almost every day, and it is a problem; but it's a problem that Congress made a judgment that we would rather go ahead and allow those matters to be litigated; and language that is very expansive in protecting employees from retaliation. And while I -- I may chafe at that at times as a managing partner of a law firm, I recognize that that is the judgment that Congress made. Here we are talking about a Congress that made a very different judgment about how it wanted to protect retaliation. And it was a judgment that was made, it seems to me, very much in the context of 1938. Justice Sotomayor, you are very right; they were not sure they even had constitutional authority to be adopting this approach; and they are attaching to it criminal sanctions, and they are not providing a private right of action; and in that context it seems to me that this Court should comfortably say that this is a much narrower proposition.
Stephen G. Breyer: What about Justice Ginsburg's question?
Carter G. Phillips: I'm sorry?
Stephen G. Breyer: What about her question? In 1938 a lot of illiterate people couldn't have filed written complaints.
Carter G. Phillips: And Congress must have recognized that fact, and--
Stephen G. Breyer: Well, if they did, isn't it reasonable to think that they would have included in filing, in such circumstances, oral filing?
Carter G. Phillips: --No, because if under those circumstances when you're going to impose criminal sanctions on somebody, you're going to say we are not going to do that.
Antonin Scalia: But your easier answer is, "yes, but only with the government. " Why isn't that an easier answer?
Carter G. Phillips: I mean, I am perfectly comfortable with that.
Stephen G. Breyer: No, that -- your problem is -- that in front of us, do we have to decide that now? We've granted a different question, etc. So--
Carter G. Phillips: The -- I mean, the truth is--
Stephen G. Breyer: --You may not want to give up your first point.
Carter G. Phillips: --Well, I don't want to give up either of the points, actually. But the bottom line is, Justice Breyer, the question presented is -- is very broad. I mean, the question of whether this goes to a governmental entity is fairly--
Stephen G. Breyer: Right. Then it's odd that you say -- it -- I gather, as well, for about 50 or 60 years the relevant agencies have interpreted the -- the statute the way that -- to include oral complaints. And that seems to me a fairly strong reason for continuing to do so, if -- where the language is so -- allows it and there aren't any strong reasons the other way.
Carter G. Phillips: --Well, I don't know that there's 50 or 60 years of allowing oral complaints--
Stephen G. Breyer: Maybe it's 30 years. Maybe it's 30.
Carter G. Phillips: --to be in the -- in the private context. There may be 50 to 60 years of allowing oral complaints being brought to the government agency, which I do think would go to Justice Scalia's point, but with respect to intracorporate communications there is no 60-year practice--
Antonin Scalia: Do we owe any deference to the Government's position on this point?
Carter G. Phillips: --I would not give any deference to the Government's position. Certainly not Chevron deference because this is not a--
Stephen G. Breyer: Well, Chevron deference would depend on an intent. I guess you are getting into an argument here that there's no reason to repeat in public. I mean, Justice Scalia and I don't necessarily agree on this. Why would you--
Antonin Scalia: Well, I mean, regardless of whether we do, why -- why don't you think we -- we have to give any deference, Chevron -- Chevron deference.
Carter G. Phillips: --Well, I mean I -- yes. There is no Chevron deference--
Stephen G. Breyer: --Why?
Carter G. Phillips: --because this is not a matter that has been allocated to either the EEOC or the Secretary of Labor to administer and to adopt regulations.
Stephen G. Breyer: How do we know? I mean, all right, if you want to get into it, this is a very minor sort of interstitial point in a statute that they administer, and there are lots of instances, I think where the Court has said, where these minor matters of how you work out the actual application of the word are implicitly delegate it to the agency to determine within the context of reasonable view.
Carter G. Phillips: But Justice Breyer, that would strike me as a more persuasive argument if Congress hadn't -- hadn't delegated to the Secretary of Labor specific rulemaking authority with respect to specific provisions of the Fair Labor Standards Act, and does not have a similar provision in connection with section 215(a).
Stephen G. Breyer: But not everything has to be done through formal rules. There -- there are many, many ways of agencies determining practice.
Carter G. Phillips: Right. But -- agency decisionmaking, but we don't have that either. All we have here are certain enforcement actions that are being brought by the agency and indeed, if you look at the enforcement actions, they all ultimately tie to some official action by some government entity. None of the actions that -- that you can go back to say I am going to defer to this, go into the circumstance we are talking about here, where it's a purely private action as opposed to some kind of a public--
Sonia Sotomayor: So we should give it no weight at all?
Carter G. Phillips: --I would give it no weight at all. But even if you gave it weight--
Sonia Sotomayor: Not even Skidmore?
Carter G. Phillips: --its persuasive weight, its persuasive weight as applied on a private side is nonexistent. You know, again, if -- if the issue were before -- if the--
Stephen G. Breyer: Why? Why would it be different? If an agency work out a system of deciding when a person is really making a complaint, as opposed to an offhand remark, and that is good enough to run the government of the United States, where they have -- where they are in this business, why -- why couldn't whatever their indicia are there, also be transplanted to the private sector--
Carter G. Phillips: --Well, it might be--
Stephen G. Breyer: --and get that to work out all right--
Carter G. Phillips: --Right, but we don't have--
Stephen G. Breyer: --in which case you would be left, if you are going to say that might work, then -- the you are left with the simple argument that you don't think that this statute means to apply to complaints to an employer, written or oral?
Carter G. Phillips: --Well, I -- I think the answer to that question is you don't have anywhere near the 50 years of practice dealing with the specific hypothetical you posed, Justice Breyer.
Stephen G. Breyer: Would you accept -- you think -- that a tenable interpretation? What this means is that written complaints are good enough to count as filings where you complained to your private employer, but written or oral count as a filing where you deal to -- with the government agency?
Carter G. Phillips: I mean, I don't think that's the most natural way--
Stephen G. Breyer: No, it isn't.
Carter G. Phillips: --to read this statute. And I think the right way to read the statute is to either say--
Stephen G. Breyer: Yes, I agree with you.
Carter G. Phillips: --that a -- that an oral complaint is -- is not sufficient, but if -- but I don't think you have to decide that issue. I think the better way to decide this case and the more fundamental one; it is the one Justice Scalia was coming back to, is does it apply beyond the government agency context? And if that isn't--
Ruth Bader Ginsburg: That isn't even brought up in the brief in opposition, right? It -- it's in your brief on the merits.
Carter G. Phillips: --It wasn't brought up specifically in the brief in opposition. On the other hand, it was clearly presented and decided by the Seventh Circuit, so it was in the case as it came to this Court; and this Court's rule is that you can defend the judgment on any ground that's fairly presented. And -- and this ground seems to me more than fairly presented, since it--
Stephen G. Breyer: On the ground itself, is there anything in the legislative history of the statute that says it's limited to the government?
Carter G. Phillips: --Well, the -- yes -- if you go back to the legislative history there is a colloquy between the two Senators, and I recognize some members of the Court are unenthusiastic -- but -- but you know, in that colloquy, they talk about malicious complaints, and it seems to me malicious in that context is talking about where you have essentially defamed your employer through a government agency.
Stephen G. Breyer: That could be. It could be that they are thinking of malicious complaints and they are thinking of government agencies at the time, but neither their language nor their purpose, as history later shows, requires that limitation on scope.
Carter G. Phillips: Well, I think if you are going back and trying to figure out what the Congress of 1938 had in mind, the best way to do that is to look at the language chosen and the company that that language keeps. And when you take about filing a complaint and you file a -- you talk about instituting a proceeding or causing a proceeding to be instituted, or testifying at a proceeding that's formal, or belonging to a -- to a company committee that is again, a governmentally instituted methodology, the best way to read that is to say what they have in mind is an official government action of some sort. And it makes perfect--
Ruth Bader Ginsburg: How would it -- how would it relate to, say, an equal pay complaint? Because equal pay is formally part of the Fair--
Carter G. Phillips: --Right. It is tied to this.
Ruth Bader Ginsburg: --Labor Standards Act. But an equal pay complaint could also be brought as a Title VII suit.
Carter G. Phillips: Right.
Ruth Bader Ginsburg: So a -- a worker just complains about the denial of equal pay to the supervisor. Does that -- is that--
Carter G. Phillips: I have no doubt that an employee under those circumstances if -- if discharged would be able to make a claim under Title VII of retaliation for that particular conduct.
Ruth Bader Ginsburg: --And there's been -- you said there was no evidence of the government for 60 years -- but there has been some 30 years or more experience under Title VII of the statutes, with oral complaints to the employer as being sufficient to ground a retaliation claim.
Carter G. Phillips: Right. And I -- I think the key to this process, Justice Ginsburg, is what lens you are looking at. Are you looking through the cracked and yellowed glass that I am looking through from 1938, or the glass as it looks through in 2010, and the truth is if you were going to adopt--
Ruth Bader Ginsburg: But it really -- it starts in 1970.
Carter G. Phillips: --I'm sorry?
Ruth Bader Ginsburg: It starts in the 1970s.
Carter G. Phillips: To be sure, Justice Ginsburg, but the -- but the -- this statute was enacted in 1938, and it was enacted as fairly radical and made an -- an initial incursion from protecting people from rehabilitation. It doesn't purport to be as expansive as any of the subsequent -- and the truth is -- can I make this point?
Sonia Sotomayor: How long have collective bargaining arbitration agreements been in existence.
Carter G. Phillips: Since the Federal Arbitration Act -- well, it actually probably predates the Federal Arbitration Act.
Sonia Sotomayor: How old?
Carter G. Phillips: Oh, it would have been back around the same period of time, in the 1930s.
Sonia Sotomayor: Do you think that when Congress wrote or caused to be instituted any proceeding under or related to this chapter, that they intended to exclude that proceeding and intended to exclude people who testified in that proceeding about a violation of the statute?
Carter G. Phillips: Yes. I don't -- I believe that proceeding is used in the Fair Labor Standards Act consistently throughout the statute to talk about Government -- official Government actions and not simply--
Sonia Sotomayor: Can you point me to something in the act that defines "proceedings"--
Carter G. Phillips: --No, nothing.
Sonia Sotomayor: --"related" -- the words "proceedings related to this chapter", as limited only to Government proceedings?
Carter G. Phillips: Well, I mean, that -- in the brief we identified a number of places where Congress uses the word "proceedings", and every place where they use the word "proceedings" they have in mind an official Government activity. And so I think it is the most reasonable -- logical way to read this particular language as incorporating that. Of course, even if that were true, even if you would preserve that, that still wouldn't be a basis for going forward with this case, because there was no proceeding that was instituted pursuant to the informal actions that were taken.
Sonia Sotomayor: Then we're back to if Congress meant filing any complaints, either oral or in writing. I'm asking a different question, which is--
Carter G. Phillips: I understand that, but I'm--
Sonia Sotomayor: --That Congress's intent was not to protect a worker who publicly took an oath in front of an arbitrator and testified about a violation of law, that they would not have considered that retaliatory under the statute.
Carter G. Phillips: --I do not believe they would have regarded that as retaliatory under the statute because of the fact that the way this is all set up is the -- and the -- it's just the narrowness of the Fair Labor Standards Act. And, Justice Ginsburg, to your question about the subsequent legislation that has all been enacted, it seems to me in a lot of ways that that reinforces the core interpretive approach that I have taken in this case, because if it were absolutely clear that the language about filing a complaint and instituting a proceeding were as broad as -- certainly as the Petitioner proposes in this case, where any kind of oral grumbling is sufficient, Congress never would have needed to deviate from that template and all the legislation that came afterwards. And there are tons of statutes that say: File a complaint, institute a proceeding, and otherwise oppose. And there would have been no reason for Congress to do that if this language would have accomplished precisely the same thing.
Anthony M. Kennedy: It's more of a question for the Petitioner's counsel than you, but are you aware of any cases in any other jurisdictions where there have been proceedings, actions for retaliation, based on complaints to third parties, like complaining to the press?
Carter G. Phillips: Well, I'm sure there are such cases, Your Honor. I mean, I doubt -- it probably wouldn't come up so much in the Fair Labor Standards Act process. And that's the problem: This has got a fairly narrow sweep to it. Obviously, wage and hours is not a significant activity, but it doesn't tend to generate the same kind of intensity that you might expect out of Title VII or the Age Discrimination in Employment Act or some of the other provisions. If there are no further questions, Your Honors, I would ask the Court to affirm the judgment.
Ruth Bader Ginsburg: Just one more question.
Carter G. Phillips: Sure.
Ruth Bader Ginsburg: It seems to me you are saying the only complaint that counts is the one to the Government. Isn't -- in the work setting that's being regulated, wouldn't there be every reason to want the employee to complain first to the employer rather than making a Federal case out of it by complaining to a Government agency?
Carter G. Phillips: Intuitively, I don't disagree with that, Justice Ginsburg, but we have to go, again: What was the purpose of this particular statute? And this statute was not intended as a protection to the employer or to the employee -- or to the employer. This was a provision that was designed to give information to the Federal Government. And we know that because there's no private right of action to the employee that it is enforceable as a criminal sanction. And if you go back to the precursors of the Fair Labor Standards Act -- and somebody asked; this was the first one. I gathered there was a third one. There was the Railway Labor Act, the NLRA, and then there was this particular provision. But if you go back to these precursors, you see that it's, again, a very narrow approach that was taken under those statutes as well.
John G. Roberts, Jr.: What if you are an employee of the Treasury Department and there is an oral complaint to your superior? Is that filing a complaint with the Government?
Carter G. Phillips: I mean, part of it depends on whether the Fair Labor Standards Act applies to Federal employees. There is a whole separate regime that deals with Federal employees. And I can't -- I'm not 100 percent sure whether this provision applies under those circumstances.
John G. Roberts, Jr.: Okay. Thank you, Mr. Phillips.
Carter G. Phillips: Thank you, Your Honor.
John G. Roberts, Jr.: Mr. Kaster, you have five minutes.
James H. Kaster: Thank you, Your Honor. We have two agencies here that have interpreted this statute this way. And it's not just enforcement actions, but we also have the EEOC manual. We also have other acts. The Surface Transportation Act--
Antonin Scalia: Excuse me. I don't understand how those agencies have any part in the administration of private lawsuits under this statute.
James H. Kaster: --The Department of Labor administers all -- all of the--
Antonin Scalia: It administers lawsuits?
James H. Kaster: --No.
Antonin Scalia: I mean, it seems to me it's a matter for the courts. An agency interprets the statutes that direct the agency's own actions if it has to enforce things and so forth. But where there is a provision for a suit in court, it seems to me it's up to the courts to decide what it means.
James H. Kaster: That may be true, Your Honor. We have the identical language in the Surface Transportation Act in OSHA, which the agency does have regulatory power over and has interpreted this precise language to include oral communications. In addition, the Migrant Workers Act -- counsel wants to suggest that all of this is a throwback to '38. The Migrant Workers Act, which was adopted in 1982, has the very same language. It is implausible to suggest that Congress would think that a migrant worker was leaving the field and writing up a memo and bringing it back to his supervisor in order to assert his statutory rights.
Antonin Scalia: What do you mean by the very same language? Just--
James H. Kaster: Filed any complaint. Filed a complaint.
Antonin Scalia: --And the remainder of it? Institute a proceeding--
James H. Kaster: It goes beyond--
Antonin Scalia: --Be a member of a committee? He is relying on large part on the context of filing a complaint. Does this statute have those other provisions?
James H. Kaster: --It does not have those other provisions, Your Honor.
Antonin Scalia: That's a big difference.
James H. Kaster: Well, I respectfully disagree, Your Honor. I also suggest that what we are talking about in the very first case that this Court dealt with after the act was passed were coal miners. Nobody is taking -- I don't think it would be plausible to suggest that Congress thought that coal miners -- coal miners, factory workers, line workers -- they don't write memos. With all due respect, Your Honor, lawyers write memos. People who this act was intended to cover, the poorest and the least educated people in the country. That's why under Mitchell v. DeMario and that's why under Tennessee Coal the Court has taken the position that this deserves, has to have, a broad interpretation. Employees are the engine that actually enforces this act.
Sonia Sotomayor: That goes to your adversary's first argument or second argument where he says when this act was passed for all of those people, they would never have thought of going to their employer because the work ethos at the time was that those employees couldn't complain to their employers. They would always naturally go to the Government. How do you answer that? How do you disprove that point: That historically at the time this was passed in 1938, that there was a number of those employees who as a regular course of their business, filed complaints with their employers as opposed to the Government?
James H. Kaster: Any complaints, Your Honor. Filed charges was the -- was the previous language in the National Labor Relations Act. Congress adopted a different phrase here, "any" -- "filed any complaint"--
Sonia Sotomayor: I'm sorry.
James H. Kaster: --"Filed any complaint". In Rosenwasser, this Court said that the criminal liability concerns of the employer were addressed by the word "any". In other words, when they suggested under the act that there was criminal liability and they didn't know the piecework employees were covered, the Court responded in 1945, the word "any" resolves any kind of ambiguity that the employer should have had. In this case "any" means any and all, and that is without limitation. That is the kind of complaint that is protected under the act. On December 11 -- there is no question in this case Kevin Kasten asserted his statutory rights. This is a case about form over substance. Form over substance. That's what we are talking about. On December 11, 2006, Mr. Kaster was fired. The same date, they changed the time clocks so that everybody else would get paid, just as he complained they weren't properly legally being paid before that. They changed the clocks the same day. If -- now, there were a half a million complaints last year in the Department of Labor. If the Court should find that every complaint needs to go to the Department of Labor, then when I get a call from an employee, a disgruntled employee who says, my paycheck was wrong, or there is something wrong with my overtime calculation, I'm going to say, You can't afford to call the human resources department and have a conversation, a friendly conversation about this, because if you do, and you happen to trigger a statutory assertion, that will be unprotected. You are going to foreclose all the internal communications that could occur.
John G. Roberts, Jr.: Thank you, counsel.
James H. Kaster: Thank you.
John G. Roberts, Jr.: The case is submitted.