Protecting Those Who Complain

The most significant employment law case before the U.S. Supreme Court this term, Kasten v. Saint-Gobain Performance Plastics Corporation, No. 09-834, was decided in the employee's favor March 22. The court held 6-2 that an oral complaint of a violation of the Fair Labor Standards Act is protected under the act's anti-retaliation provision.

Justice Elena Kagan did not participate in the decision. Justice Antonin Scalia dissented and was joined by Justice Clarence Thomas; Justice Stephen Breyer wrote the majority opinion, which reversed and remanded a decision in the company's favor by the 7th U.S. Circuit Court of Appeals.

The case involved Kevin Kasten, an employee of Saint-Gobain who was terminated in 2006 for failing to use the company's timeclock at its Portage, Wis., facility to properly record his work hours. Kasten soon filed a complaint with the Wisconsin Department of Workforce Development in which he claimed he had repeatedly complained to HR personnel at Saint-Gobain that the timeclock's location was unlawful because it resulted in employees' not being compensated for donning and doffing time. He claimed Saint-Gobain moved the clocks closer to the employee entrance on the day he was fired.

At trial, Saint-Gobain did not dispute that donning and doffing time was uncompensated because its clocks were located beyond locker rooms and gowning areas. But it won a summary judgment from the trial judge, who held that a complaint must be in writing to be protected under the anti-retaliation provision. The appeals court affirmed.

The act bars retaliation against an employee because he or she has "filed any complaint" alleging an FLSA violation. Several appeals courts have held that the anti-retaliation provision, 29 U.S.C. 215(a)(3), protects an employee for filing an internal complaint with his or her employer. But the dissent by Scalia and Thomas said internal complaints should not be protected. The retaliation provision "contemplates an official grievance filed with a court or an agency, not oral complaints -— or even formal, written complaints -— from an employee to an employer," Scalia wrote.

The practical effect of the decision is a more challenging HR terrain for employers, who may find it very difficult to determine when a worker's gripe is a "filed" complaint.

Posted by Jerry Laws on Mar 22, 2011

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