Employee To Get Trial On Oral FLSA Complaint

By Mike Grubbs

The Supreme Court decided last year that an oral complaint about a wage and hour issue counts as protected activity under the Fair Labor Standards Act. That decision is bearing fruit for at least one of the plaintiffs who brought the suit.  Kevin Kasten alleged that his former employer, Saint-Gobain, terminated his employment because he orally complained about the location of time clocks.  The location “caused” him to forget to clock in and he repeatedly complained that the location of the time clocks was “illegal.”

On remand from the Supreme Court, the trial court found that, even though Kasten’s oral complaint was protected activity, he failed to present sufficient evidence that his termination was caused by or related to his complaint. Kasten appealed this decision to the Seventh Circuit Court of Appeals.  The Seventh Circuit held that Kasten did present sufficient evidence: his termination was close in time to his protected oral complaint and the employer made ambiguous statements that could support his retaliation claim. Further, the employer moved the time clocks the same day he was terminated, which the court deemed “suspicious.”  Accordingly, Kasten will finally get his trial on his FLSA retaliation claim – after only 6 years of litigation so far.  The case is Kasten v. Saint-Gobain Performance Plastics Corp., No. 12-1671 (7th Cir. November 30, 2012).

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