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WAGE AND HOUR LAW: Failure to consider oral complaints melts plastic manufacturer


The U.S. Supreme Court continues to broadly interpret the antiretaliation provisions contained in federal employment statutes. One of its most recent decisions forces employers to carefully consider oral complaints about alleged wage and hour violations. Overlooking those complaints may be construed as unlawful retaliation under the Fair Labor Standards Act (FLSA) if adverse action is later taken against the complaining employee.


Kevin Kasten was an hourly manufacturing and production worker at Saint-Gobain Performance Plastics Corporation in Portage, Wisconsin. The time clock he was required to use was located between the area where workers donned and doffed their work-related gear and the area where they carried out their assigned tasks. The location of the time clock prevented workers from receiving credit for the time they spent donning and doffing their work clothes — contrary to the requirements of the FLSA.

Kasten repeatedly called the time clock’s unlawful location to Saint-Gobain’s attention — in accordance with the company’s internal grievance resolution procedure. Specifically, he raised the issue with his shift supervisor and an HR employee, but he never reduced his complaint to writing. Saint-Gobain discharged Kasten in December 2006, purportedly for “fail[ing] to record his comings and goings on the time clock.” Kasten disputed the employer’s reason and argued he was discharged because of his oral complaints about the location of the time clock.

Saint-Gobain argued that the antiretaliation provision of the FLSA prohibits retaliation against employees who file written, not oral, complaints about alleged FLSA violations. Because Kasten’s complaints weren’t in writing, Saint-Gobain contended that he couldn’t file a retaliation claim under the FLSA. In a stunning defeat for employers, the Supreme Court ruled in favor of Kasten, finding that even employees who orally complain of alleged FLSA violations may file a retaliation suit if they are later discharged or otherwise disciplined. Kasten v. Saint Performance Plastics Corporation, No. 09-834, 2011 WL 977061 (U.S., March 22, 2011).

Bottom line

Carefully evaluate any personnel actions that may affect employees who have previously complained (either orally or in writing) of violations of wage and hour or antidiscrimination statutes. Also, consider modifying your internal complaint procedure to require that all complaints be made to a specific person or location — such as a drop box or dedicated telephone line that time stamps each message as it is left. In any event, you should design a complaint procedure that reduces the chance that an errant oral complaint is inadvertently overlooked and later used to substantiate a retaliation lawsuit by a disgruntled employee.

You can research the FLSA or any other employment law topic in the subscribers’ area of, the website for Kentucky Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2011 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.


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