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Like all hourly employees in your manufacturing facility, Kevin uses a time card to swipe in and out of an on-site time clock. After receiving several written warnings for failure to swipe in and out, Kevin was suspended and then terminated. In a lawsuit that he has filed against your company, Kevin claims he was discharged for making repeated verbal complaints to supervisors and to a human resources staff member that the location of the time clock was illegal and prevented employees from being paid for time spent donning and doffing required protective gear. Will Kevin be successful on his retaliation claim?
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Answer: |
In a case with similar facts, the Seventh Circuit ruled that an employee did not suffer retaliation within the meaning of the Fair Labor Standards Act (FLSA) because he was not engaged in FLSA-protected activity. Addressing for the first time whether internal complaints are protected activity, the Seventh Circuit, siding with a majority of circuit courts to have considered this issue, concluded that, under the plain language of the FLSA, intra-company complaints are covered, and that protection from retaliation is not limited to formal complaints filed in court or with an administrative agency.
However, the federal appeals court also held that unwritten verbal complaints are not protected activity, rejecting the argument that the retaliation provision should be read expansively to include unwritten objections. Looking to the language of the statute, the court found that the retaliation provision refers to “filing” a complaint, which connotes a complaint made in writing. Further, it noted that analogous provisions in other statutes (such as Title VII and the Age Discrimination in Employment Act) more broadly protect employees who have “opposed any practice,” while the FLSA’s “file any complaint” language is more narrow. Thus, the employee’s alleged verbal complaints were not protected.
Source: Kasten v. Saint-Gobain Performance Plastics Corp (7thCir 2009) 158 LC ¶35,598
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