Griping versus “Filing”
Posted on 06-Oct-09 by The Timekeeper
From the Don’t Make Threats You Can’t Back Up Department comes the story of Kevin Kasten, former employee of Saint-Gobain Performance Plastics in Illinois.
Apparently, Mr. Kasten had a problem clocking in and out. Because this was a required procedure, the company pursued disciplinary action against him in an attempt to encourage his compliance with their time and attendance policies.
They followed what are pretty much textbook procedures: first an oral warning, then a written warning, then a suspension that included a written notice the suspension was his last chance and any further violations could result in termination. Unfortunately, none of this apparently motivated Mr. Kasten, who reportedly continued to violate the timeclock policy and was duly let go.
He did not go quietly, though.
The allegations
In due course he filed a wage and hour lawsuit in which he alleged his firing was actually illegal retaliation for his having complained about the location of the punch clocks. In his suit, he said he had orally complained to the supervisors that the location of the time clocks was illegal, in that (according to Mr. Kasten) the location prevented employees from properly accounting for time spent “donning and doffing” their required protective gear.
(It is unknown whether any other employees had similar issues with the location of the clocks.)
He also claimed he told management verbally in a meeting after his termination, “if he challenged the company in court regarding the location of the clocks the company would lose.”
Well, maybe not…
It is true: according to the FLSA, employers are prohibited from taking retaliatory action against employees who file a complaint about violations of the FLSA: “it shall be unlawful for any person… to discharge or in any other manner discriminate against any employee because such employee has filed any complaint…”
However, the company argued they had not retaliated against him for complaining — rather, they’d fired him for repeatedly violating company time and attendance policy despite several warnings — and besides, complaining verbally is not the same as “filing” a complaint, so his termination had nothing to do with the FLSA’s anti-retaliation clause anyway.
And, interestingly enough, the 7th Circuit Court of Appeals agreed. While they found that “any complaint” could encompass both complaints made to outside agencies as well as complaints filed internally to the company, they also held that by dictionary definitions and common usage, “filing” is generally taken to pertain only to written documents.
Mr. Kasten had never claimed to have filed a written complaint anywhere; even he admitted all his complaints were delivered verbally. So the court found he’d never officially “filed” a complaint; thus his firing could not be a violation of the anti-retaliation provision of the FLSA in the first place.
The moral of the story
Now, while Saint-Gobain Performance Plastics ultimately prevailed, they did have to go through the hassle and expense of defending against a lawsuit. So it’s probably a good idea to take seriously complaints you get, even if they are only delivered verbally.
And if an employee goes so far as to actually file a written complaint, you’d better take it seriously, because at that point the anti-retaliation provision of the FLSA kicks in, and any adverse employment actions taken against that employee could be subject to scrutiny. Make sure you’ve documented everything to the hilt and dotted all the i’s and crossed all the t’s and checked and doublechecked with your employment law advisor before you do anything.
Oh, yeah, and whatever you do, don’t actually try to exact revenge against an employee for asserting their rights under wage and hour law. I’ve said it before and I’ll probably say it again: it’s bad form, and it’s illegal, and it will come back to bite you, big time.
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