How Long Is "Too Short?"

10 December 2012 Labor & Employment Law Perspectives Blog

Employers know retaliation cases continue to rise, and many appropriately fear being the subject of one. Employers also know that it is difficult, if not impossible, to know exactly when retaliation will occur. So what to do? On November 30, 2012, the Seventh Circuit Court of Appeals issued a decision in which it attempted to further clarify parameters of retaliation. In Kasten v. Saint-Gobain Performance Plastics Corporation, the employee argued that the location of the time clock was illegal because it forced employees to inaccurately record the time they spent going to their work station or donning or doffing (putting on and taking off) required clothing. The employee was continually counseled and disciplined for failing to accurately clock in. On the fourth occasion, where he was about to be disciplined, a supervisor told the employee to “just lay down and tell them what they want to hear, [they] can probably save your job.” The employee claimed to have complained of the location of the time clocks at a meeting regarding his suspension and again via email and phone call to a supervisor. Two days later, the employee was terminated from employment. That same day, the time clocks were moved closer to the donning and doffing area.

The court reversed an order in favor of the employer. Relevant to all employers, the court identified three factors giving rise to a suspicion of retaliation: suspicious timing, ambiguous statements and behavior, and evidence of pretextual reasoning for an employee’s discharge. More specifically, the court determined a jury question existed as to whether retaliation occurred based on four facts: only two days elapsed between the employee’s complaint and his discharge; the fact that the employee was disciplined for every punch clock violation after he complained (as opposed to the sporadic discipline he received prior to complaining); the ambiguous statement made by a supervisor about “laying down and telling them what they want to hear” was a potential job threat; and the fact that the time clocks were moved the day the employee was discharged. Finally, in reversing, the court also found that inconsistent explanation for taking an adverse employment action suggested pretext and that oral complaints put an employer on “fair notice” of a potential violation of the Fair Labor Standards Act.

What does this case mean for employers?

1. The timing of complaints is key.
2. Be clear and consistent as to the reason for employee discipline.
3. Be careful in tying employee discipline with a change in employer practices.
4. Pay attention to oral complaints of unpaid wages.

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