Tuesday, May 8, 2012

Revenge is a dish best never served at all in the workplace

Section 215(a)(3) of the Fair Labor Standards Act makes it unlawful for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint … related to” wages paid or hours worked. It has been over a year since the U.S. Supreme Court held—in Kasten v. Saint-Gobain Performance Plastics—that this anti-retaliation provision covers oral complaints. The Court, however, left open the issue of whether an intracompany complaint suffices as protected activity under the FLSA.

Federal courts are starting to sort out the answer to this important question. And, it doesn’t look good for employers. For example, in Minor v. Bostwick Laboratories, Inc., the notoriously conservative 4th Circuit held that “the remedial purpose of the statute requires that it protect from retaliation employees who file intracompany complaints.”

The court highlighted some the policy considerations behind this ruling:

The protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation—and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.

While Kasten left open the issue of whether internal complaints suffice as protected activity under the FLSA, lower federal courts are quickly closing this door. Any time you, as an employer, are thinking about exacting revenge on an employee who even arguably engaged in protected activity, think twice, or three times, or as many times as is necessary to dissuade you of your inclination to retaliate. Courts are increasingly resistant to giving free passes to employers who retaliate. If you think you can rely on a legal technicality as a defense (e.g., Kasten), think again. The deck is stacked against you.