Joining in a division among the federal appeals circuits, the Seventh Circuit rules that the retaliation prohibition in the Fair Labor Standards Act does not apply to protect employees who make only “unwritten, purely verbal complaints” to their employers.

The case involves the termination of an employee who claimed he was discharged in retaliation for his verbal complaints regarding the location of the time clocks; he said that the location of the time clocks prevented employees from being paid for time spent donning and doffing their required protective gear. The FLSA’s retaliation provision prohibits “discharg[ing] . . . any employee because such employee has filed any complaint . . . ,” the Court notes, and further declares that the contention “that ‘to file’ can mean, generally, ‘to submit,’ this seems to us overbroad.”

“Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity,” the Court says. The Court’s decision also notes that other courts that have tackled this issue are split. The Fourth Circuit found that verbal complaints were not protected activity, while the Sixth, Eleventh and Eighth Circuits have indicated that verbal complaints were protected. (Note: The Ninth Circuit, which covers Hawaii, and Hawaii’s Whistleblower Protection Act, allows and protects verbal complaints.) Kasten v. Saint-Gobain Performance Plastics Corp.