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Update on Retaliation Claims

By Victoria Woodin Chavey
September 29, 2009

If an employee orally complains to a supervisor about the employer's wage practices, which he believes violate the Fair Labor Standards Act (“FLSA”), has the employee engaged in protected activity that may form the predicate to a claim of retaliation under the FLSA? The Seventh Circuit recently answered this question in the negative in Kasten v. Saint-Gobain Performance Plastics Corp., 2009 U.S. App. LEXIS 13913 (7th Cir. June 29, 2009). The court so held because the employee's strictly oral complaints about allegedly improper wage practices did not implicate the FLSA's prohibition of retaliation against those who have “filed any complaint.” 29 U.S.C. ' 215(a)(3) (emphasis added). In light of this holding, members of both the plaintiff's and defense bar are now asking: if the Seventh Circuit got it right in Kasten, what is the practice impact of the decision, and what is the viability, under other federal anti-discrimination statutes, of retaliation claims that are predicated solely on employees' oral complaints of allegedly illegal conduct by employers?

The Kasten Decision

The Kasten case arose when Kevin Kasten, a non-exempt employee of the defendant Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”), received a series of disciplinary warnings regarding his failure to use the company's time clocks to punch in and out properly. 2009 U.S. App. LEXIS 13913, at *2-4. Specifically, Saint-Gobain issued a verbal warning, followed by a written warning, followed by another written warning that also involved a one-day suspension, all relating to Kasten's alleged failure to use the time clocks properly. After a fourth alleged incident of Kasten's failure to punch in and out properly, the company suspended him again and, several days later, terminated his employment. 2009 U.S. App. LEXIS 13913, at *4.

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