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Friday, March 25, 2011

Time-Clock Complaint Protected Conduct


By Tommy Eden, Attorney

Kevin Kasten was fired from his job after voicing complaints to his employer about the location of time-clocks. The employer, Saint-Gobain Performance Plastics Corp., is a Paris based multinational corporation and claims to be the world’s leading producer of engineered, high performance polymer products. It located its timeclocks between the area where Kasten and other workers put on and take off (also called “donning and doffing”) their work related protective gear and the area where they carry out their assigned tasks. That location prevented workers from clocking in for the time they spent putting on and taking off their work clothes. Employers are required to compensate “donning and doffing” which can be a violation of the Fair Standards Labor Act (FLSA).

Kasten claims that he was discharged because he orally complained to company officials about the location of the timeclocks. In particular, Kasten says he repeatedly called the unlawful time-clock location to his supervisor’s attention, in accordance with the employer’s internal grievance resolution procedure. Kasten also “raised a concern” with his shift supervisor that “it was illegal for the timeclocks to be where they were.” Further, he claims that he told a number of employees in supervisory positions, including human resources, that if the employer got challenged on the location in court, “they would lose.” Kasten also made it known to his supervisor that he was thinking about suing the employer over the placement of the timeclocks.

Kasten was disciplined and eventually dismissed; but the company denies that Kasten made any significant complaint about the time-clock location. It claimed to have dismissed Kasten simply because he, after being warned numerous times, failed to record his comings and goings on the time-clock. After the company fired Kasten it moved the time-clocks.

The lower courts held that the FLSA anti-retaliation provision did not cover oral complaints. On March 22, 2011, the United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. disagreed, holding that the FLSA protects oral complaints. Justice Stephen Breyer, writing for the high court majority, explained that the FLSA forbid employers “to discharge … any employee because such employee has filed any complaint” alleging violation of the Act. The term “filed any complaint” includes oral, as well as written, complaints.

Common Sense Counsel: This case means that it is time for a Wage and Hour Compliance Audit. With the DOL’s new resources, employers can expect to face additional pressure from the government and individual lawsuits. Wage and hour compliance is one of the most difficult problems for employers. Alabama employers should considering taking the following steps before a government compliance officer, or plaintiff attorney, arrives at the door:

  • Check that your employee handbook has the most updated FLSA “safe harbor” language with an anti-retaliation provision included;
  • Review FLSA classifications and job descriptions of exempt, nonexempt, and independent contract workers;
  • Check the FLSA legal compliance of your commissions, bonuses, incentive payments, and other compensation programs;
  • Insure that overtime pay calculations are being properly documented; and
  • Check that you are following FLSA recordkeeping requirements.

Tommy Eden is a native of Auburn, an attorney with the local office of Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540.