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Retaliation in the Workplace (Again!)
Employees who make oral complaints about wage and hour violations in the workplace are protected from retaliation, so long as the oral complaint provides the employer “fair notice” that the employee invokes a protected right. This principle was clarified by the U.S. Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1334 (2011) and rearticulated by the 7th Circuit in Kasten v. Saint-Gobain Performance Plastics Corp., — F. 3d — (7th Cir., 11/30/2012). Kasten involved an employee who was terminated for repeatedly failing to punch the company time clock. During the course of disciplines leading to his termination, Kasten orally complained that the time clocks were too far away from the employee donning/doffing area, claiming that this violated the Fair Labor Standards Act.
Following termination, Kasten sued the company, alleging retaliation. The company challenged the sufficiency of Kasten’s oral complaints to confer protection against retaliation, as well as their causal connection to his discharge. The federal district court and the 7th Circuit agreed that the complaints were insufficient to confer statutory protection against retaliation. [WDWI Case No. 3:07-cv-0686; 570 F.3d 834(7th Cir., 2009); rehearing en banc, 585 F.3d 310 (7th Cir., 2009)]. The U.S. Supreme Court overturned these decisions and remanded the case for further proceedings. On remand, the district court found that Kasten’s oral complaints satisfied the “fair notice” standard, but found no causal connection to his termination. On November 30, 2012, the 7th Circuit overturned the dismissal, finding a triable issue of fact on the issue of causation.
The lesson for employers is that oral complaints made by employees alleging workplace illegalities, such as wage and hour violations, must be respected and responded to promptly. While employers can ask employees to reduce their oral complaints to writing, the protection from retaliation attaches when the oral complaint is made. Because such complaints may first come to low level supervisors, team leaders, lead workers or the like, management must train these and other supervisors to report such complaints up the chain without delay. After that, any adverse employment action against a complaining employee must be carefully thought through with a potential retaliation claim in mind.
The comments and opinions expressed in this blog are intended for informational purposes only and do not constitute legal advice. Reading or using the information in this blog does not create the existence of an attorney-client privilege. Due to the changing nature of the law, the blog posts may contain dated material. For an update on the current law and the application of the law to your particular facts and circumstances, consult a legal advisor. The information contained herein is not a substitute for obtaining legal advice from a qualified attorney licensed in your state.