Friday, April 01, 2011
On March 22, 2011 the US Supreme Court ruled that oral complaints made directly to an employer are to be considered protected behaviors under the Fair Labor Standards Act (FLSA) § 215(a)(3) of the Act. Citing numerous examples of the use of oral complaint procedures allowed in local, state, Federal rules and regulations, as well as legislative and judicial processes; the Court concluded that both written and orally presented directly to an employer are to be afforded the same level of protection.
Kevin Kasten, a former employee of the Saint-Gobain Performance Plastics Corporation was discharged for failing to clock in and out on numerous occasions while employed at Saint-Gobain. Kasten alleged that he was discharged in retaliation for making oral complaints to Saint-Gobain about the placement of time cloaks. Kasten’s complaints dealt with the time clock’s placement that failed to allow for the recording donning and doffing time to put on and take off protective clothing at the beginning and ending of work shifts. Prior decisions by the courts have held that such donning and doffing time is to be considered time worked requiring workers to be paid.
The Court cited that at the time of the Act’s passage, “20.8% of manufacturing laborers in 1940 had less than five years” of education. Thus to require only written complaints would have imposed a significant hardship on such workers. Saint-Gobain countered that to protect oral complaints would expose employers to “a state of uncertainty about whether an employee (particularly an employee who seems unusually angry at the moment) is in fact making a complaint about an Act violation or just letting off steam”. Nevertheless, the Court concluded that the Seventh Circuit erred, sent the case back to the lower court, and vacated the Circuit court’s judgment.
How will any organization separate and distinguish between an employee “just letting off steam” and a valid and concerted compliant? First, every organization should have fully vetted policy in place to address employee complaints whether written or oral. Second, supervisory and management team members need to be trained in the handling of employee complaints. Third, organizational policies addressing employee complaints should be well communicated to current and prospective employees. Fourth, every “compliant” should be taken seriously, investigated thoroughly, and well documented. Does this impose an undue burden upon the organization? Yes, it does, but so does the thousands of dollars spent on legal fees, lost productivity, and the potential for fines, penalties, recovery of lost wages, loss or employee and community goodwill.
Kevin Kasten was discharged from Saint-Gobain’s Portage, Wisconsin facility in December 2006. Since that time Saint-Gobain’s management and its legal team have most likely spent hundreds of hours defending their position over the placement of the time clocks when earlier court decisions clearly indicated that donning and doffing time is to be considered time worked requiring workers are to be paid for that time. Furthermore, all evidence indicated that Kasten had raised the issue of time clock placement on numerous occasions over the three years he worked for Saint-Gobain. Had Saint-Gobain addressed the issue early on in Kasten’s employment, Saint-Gobain would not have been faced with public exposure in Seventh Circuit, the Supreme Court, and now a repeat of the entire process.
While I am sure that Saint-Gobain is well known for many innovative services, products, and processes within their industry; I am not sure that they what to be known for landmark decisions in the area of employment and employee relations, particularly when they were on the losing side of those decisions.
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