Labor, Fair Labor Standards Act, Anti-Retaliation

Friday, March 18, 2011

And you thought that the Fair Labor Standards Act only dealt with minimum wage and overtime!

Kevin Kasten, an employee of Saint-Gobain Performance Plastics, Corp., filed suit claiming that Saint-Gobain ended his employment due to his objections to the location of the company's timekeeping clocks. Citing that Fair Labor Standards Act (FLSA) § 215(a)(3) of the Act protects workers from employer retaliation, even for making oral complaints, Kasten filed suit in 2009. On the other hand, Saint-Gobain states that the FLSA only provides protections in the case of written complaints and only when those complaints are made to governmental agencies. In an earlier decision, the Seventh Circuit agreed with the employer. Subsequently, Kasten appealed to the U.S. Supreme Court who will hear the case sometime in early 2011. If the Court overturns the Circuit’s decision, informal employer-employee complaints could allow workers to raise workplace grievances verbally without fear of retaliation.

At issue is the placement of the company’s time clocks, which requires Saint-Gobain employees to “suit-up” by donning and doffing their protective gear before clocking in and clocking out. Kastsen argued that time spending donning and doffing protective gear should have been “time worked” under FLSA. However, the placement of the time clocks prevented recording donning and doffing time. After numinous oral and written warnings and suspensions for failing to properly clock in and clock out, Kasten was terminated. After being terminated, Kasten sued Saint-Gobain stipulating that the company retaliated against him for his verbal complaints to supervisors, which he aurgered was a protected action under FLSA.

Fair Labor Standards Act states that “it shall be unlawful for any person”, § 215(a)(3), reads: ”(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;”. Apparently, the Seventh Circuit agreed with the employer that a verbal complaint did not meet the test of “filing” a complaint. Thus when the Supreme Court hears the case in early 2011, will they agree or disagree that “filing” may be accomplished verbally as well as in writing?

While this case may seem much to do about nothing, the time, energy, costs, lost goodwill, lost productivity, distraction, and pure frustration is anything but insignificant. If Saint-Gobain’s goal was to avoid paying for “twenty minutes" to "2.5 hours of pay per week” as alleged by Kasten, legal fees alone have passed that threshold or will do so very soon. If the Supreme Court returns the case to the lower court, both parties could be at this for some time into the future.

According to Saint-Gobain’s website, they are “a Paris-based multinational corporation with more than 350 years of engineered materials” experience. Saint-Gobain is in the top “52” industrial companies “in the world with € 43.8 billion in sales, 205,000 employees in 59 countries”, and produces “more than 20,000 products”.