Employee Rights No Fees Unless We Win
While California statutes, by providing a higher minimum wage, more stringent overtime and child labor requirements, generally do a better job of ensuring that workers receive a just day’s pay in the workplace than Federal law, the Federal FLSA does establish baseline, or minimally acceptable, standards for wages and working conditions, including minimum wage, overtime pay, recordkeeping, and youth employment in the private sector and in Federal, State, and local governments. These standards generally apply regardless of the worker’s immigration status or whether the worker otherwise lacks legal work authorization. Unfortunately, some employers have exploited employees’ lack of legal immigration status to discourage workers from asserting their right to complain that their employer has violated the wage and hour provisions of the FLSA. FLSA standards also apply to both full-time and part-time workers. As with California law, the FLSA creates two classifications of employees for the purpose of minimum wage and overtime—exempt employees and non-exempt employees. Exempt employees are excluded from both minimum wage and overtime pay. In order for an employer to legally exempt an employee from minimum wage and overtime pay laws, the employment must meet the legal standard for executive, administrative, professional, computer, or outside salespersons employee exemptions. An exempt employee must: (i) have a salary above a minimum salary threshold; (ii) be paid on a salary basis; and (iii) perform duties that qualify for an exemption. The FLSA “provides minimum standards that may be exceeded, but cannot be waived or reduced. Employers must comply. . . with any . . . State or municipal laws, regulations or ordinances establishing a higher minimum wage or lower maximum workweek than those established under [the FLSA].” 29 Code of Federal Regulations section 541.5. According to the United States Department of Labor, Wage and Hour Division, which enforces the FLSA, over 143 million American workers are protected or covered by the FLSA.
It is unlawful for an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” 29 United States Code section 215(a). The term “employee” does not include any individual who volunteers to perform services for a public agency. 29 United States Code section 203(e)(4). The term “industry” means “a trade, business, industry, or other activity, or branch or group thereof, in which individuals are gainfully employed. 29 United States Code section 203(h). Effective enforcement of the FLSA is dependent on deterring employers from manipulating workers to prevent them from asserting their workplace rights. Complaints to the United States Department of Labor, Wage and Hour Division are protected, and internal complaints to an employer are also generally protected.
The Fair Labor Standards Act is not included in either Title VII of the Civil Rights Act of 1964, 42 United States Code section 2000e, et seq., or in the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996. Nevertheless, it is a statutory basis for bringing a claim of retaliation, and it works in much the same way as claims for retaliation under Title VII or the FEHA. An employer is prohibited from discharging or otherwise discriminating against employees who have participated in activities to which they were entitled to participate.
Prohibited retaliatory practices include not only termination but also constructive discharge. Constructive discharge occurs if a “reasonable person in a similar situation would have felt that he [or she] was forced to quit because of intolerable and discriminatory working conditions.” Ford v. Alfaro (9th Cir. 1986) 785 F.2d 835, 841.
In Kasten v. Saint-Gobain Performance Plastics Corp. (2011) 563 U.S. 1, Kasten brought a retaliation lawsuit under the FLSA against his employer, Saint-Gobain, a manufacturer of high-performance polymer products. Saint-Gobain required its hourly employees to punch in and out of its time clocks to receive a weekly paycheck. Kasten, who was an hourly manufacturing and production employee, alleged that his employment was terminated because he orally complained to company officials in accordance with the company’s internal grievance-resolution procedure that timeclocks were placed in a location within the workplace that prevented workers from receiving credit for the time they spent donning and doffing (taking on and off) work-related protective gear. As such, the placement of the timeclocks violated the FLSA’s requirement that employees be paid for all time during which an employee is necessarily required to be on the employer's premises, on duty, or at a prescribed workplace. 29 Code of Federal Regulations section 785.7.
Kasten told a supervisor that “it was illegal for the time clocks to be where they were” because the company was not paying workers for “the time you come in and start doing stuff.” In addition, he told a human resources employee that if the company “were to get challenged on” the location in court, “they would lose.” Kasten alleged that after he made these complaints and then was repeatedly suspended for violations of company policy, a supervisor told him "just lay down and tell them what they want to hear, [they] can probably save your job." On Saturday, December 9, 2006, Kasten called a shift supervisor and asked whether she had read any articles about a class action lawsuit related to time clock punches. Two days later, Saint-Gobain terminated Kasten’s employment.
Saint-Gobain, on the other hand, denied that Kasten made a significant complaint about the timeclock location. Saint-Gobain claimed it dismissed Kasten after repeatedly warning Kasten that he had failed to record his comings and goings on the timeclock. Kasten countered that Saint-Gobain did not promptly terminate two employees that had more time clock violations than he did and that his termination was improper under the company’s Attendance Policy, as he had not clocked in late twenty-five times within a twelve-month period. Saint-Gobain later stated that it had made a labeling error and that Kasten was actually terminated pursuant to its Corrective Action Program rather than its Attendance Policy.
The United States District Court, Western Division of Wisconsin dismissed the lawsuit based on the conclusion that the FLSA antiretaliation provision does not protect oral complaints. On appeal, the Seventh Circuit agreed with the District Court that the FLSA’s antiretaliation provision does not cover oral complaints. That ruling was then reviewed by the United States Supreme Court. The Supreme Court considered the historical background in which the FLSA was enacted. For instance, near the time of the passage of the FLSA, the Bureau of Census determined that 20.8% of manufacturing laborers in 1940 had less than five years of schooling. Therefore, a requirement that FLSA complaints must be in writing would discourage the use of desirable informal workplace grievance procedures to secure compliance with the FLSA. The Supreme Court also noted while employers must receive fair notice of an FLSA complaint to be liable for FLSA retaliation (an employer cannot be held liable for retaliating against a complaint it has no knowledge of), that the “filed any complaint” language in the FLSA’s antiretaliation provision supported the conclusion that FLSA’s antiretaliation provision does in fact cover oral complaints.
The United States Court of Appeals, Seventh Circuit later ruled that Kasten had provided evidence that would support a jury inference of retaliation. Kasten v. Saint-Gobain Performance Plastics Corporation (7th Cir. 2012) 703 F.3d 966.Contact Us