Federal Ruling regarding Employee Time Clocks, 2009
Summary:  Someone complained that it was inconvenient to use.  They lost.
7th Circuit - Verbal Complaints About Time Clock Not Protected Under Federal Law

Court Rejects Worker's FLSA Retaliation Claim

A federal appellate court recently dismissed a lawsuit brought by an employee who claimed that he was fired after he allegedly made verbal complaints regarding the location of the company's time clocks. The court found that the worker could not establish a retaliation claim under the Fair Labor Standards Act (FLSA) because only written complaints are "protected activity" under the federal law. Kasten v. Saint-Gobain Performance Plastics Corp., No. 08-2820, Seventh Circuit Court of Appeals (June 29, 2009).

Factual Background

Kevin Kasten was employed by Saint-Gobain Performance Plastics Corp. in Portage, Wisconsin. According to company policy, hourly employees must use a time card to swipe in and out of time clocks located in the plant.

During 2006, Kasten received three disciplinary notices (one verbal and two written) due to several "issues" he had with regard to punching in and out on the time clock. The third notice, which was issued in November 2006, was accompanied by a one-day suspension. In addition, Kasten was warned that "[t]his was the last step of the discipline process" and if another violation occurred, further discipline (including termination) could result. Kasten signed each notice, acknowledging that he read and understood it.

From October through December 2006, Kasten alleged that he verbally complained to supervisors about the location of the time clocks. According to Kasten, the location of the time clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Saint-Gobain denied that Kasten complained to any of his supervisors about the time clock location.

On December 6, Saint-Gobain suspended Kasten based on his fourth violation of the company's timekeeping policy. Five days later, the company terminated his employment. Kasten then sued Saint-Gobain under the FLSA claiming that he had been fired in retaliation for his verbal complaints regarding the location of the time clocks. The trial judge ruled in favor of the company and Kasten appealed.

Legal Analysis

The trial judge found that Kasten had not engaged in protected activity because he had not "filed any complaint" about the allegedly illegal location of the time clocks. The Seventh Circuit Court of Appeals upheld this ruling. According to the court, the FLSA's retaliation provision requires a written complaint. "Because we believe the FLSA's use of the phrase `file any complaint' requires a plaintiff employee to submit some sort of writing," the Seventh Circuit wrote, "we agree with the district court's conclusion that Kasten's alleged complaints were not protected activity under the statute." Thus, the court upheld the dismissal of his FLSA suit.

Practical Impact

According to Tracey Truesdale of Ogletree Deakins' Chicago office: "Employers shouldn't read too much into Kasten. While the Seventh Circuit's narrow reading of the FLSA's anti-retaliation provisions is a welcome sight, particularly after the U.S. Supreme Court's expansive interpretation of Title VII's anti-retaliation language in Burlington Northern & Santa Fe Railway Co. v. White (2006) and Crawford v. Metropolitan Government of Nashville (2009), the appellate court made clear that the employee need not lodge a formal complaint with a court or government agency - an internal complaint to human resources or a manager will still blanket the employee from retaliatory action, so long as the employee expresses his or her concerns in writing. Furthermore, a clever plaintiffs' lawyer will simply plead the claim under applicable state wage/hour provisions or as a common law retaliation claim."

Note: This article was published in the July/August 2009 issue of The Employment Law Authority.