Category Archives: Wage and Hour Issues

Kasten v. Saint-Gobain: Supreme Court Rules on Oral FLSA Employee Complaints

Kasten v. Saint-Gobain: Supreme Court Rules That Oral Employee Complaints Are Afforded FLSA Retaliation Protection


On March 22, 2011, the United States Supreme Court issued its long-awaited opinion in Kasten v. Saint-Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (Mar. 22, 2011), holding that oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (“FLSA”).

The Court’s decision has potentially significant implications beyond the FLSA, as several other federal statutes—including the Occupational Safety and Health Act (“OSHA”), the Migrant and Seasonal Agricultural Worker Protection Act, and the Clean Air Act—include similar language in their anti-retaliation provisions.  Of particular importance to employers, the holding reaffirms a best practice for employee complaints: Pay attention to all employee complaints, regardless whether they are oral or written.


Kasten, a former employee in Saint-Gobain’s Portage, Wisconsin facility, received repeated warnings, and ultimately was terminated, for violating company policy requiring hourly employees to clock in and out of work. See Kasten v. St. Gobain Performance Plastics Corp., 570 F.3d 834, 836 (7th Cir. 2009).  Following his termination, Kasten filed a lawsuit alleging that he was discharged in retaliation for making oral complaints to his supervisors and human resources personnel that the location of the company’s time clocks prevented employees from recording their time spent “donning and doffing” protective gear.  See id. at 835-36. Answer→

Quirky Question # 169: Independent Contractor or Employee?


Our company is located in Washington. To limit costs, we turned to use independent contractors in order to avoid paying benefits, limit overhead, and increase flexibility. But when can someone we hired as an “independent contractor” and for whom we expressly retained no “right to control” nonetheless be deemed an employee, exposing the company to unplanned risks under Federal and some state laws? Answer→

Quirky Question # 165, Employment Cases Before the U.S. Supreme Court


This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term? Answer→

California Wage and Hour Issues, Quirky Question # 128

Quirky Question # 128:

I work for a California employer with nonexempt retail employees who earn commissions on their sales.  We have been sued for failing to provide our employees with meal and rest breaks.  I understand the company may be liable to each employee for one hour of pay when a break was not provided.  The class action complaint against us, however, alleges the one hour of pay is based on each employee’s rate after incorporating his/her earned commissions, and that for days in which a missed meal and rest break occurred, the employee is owed two hours of pay.  Is that correct? Answer→

Wage and Hour Cases in the Ninth Circuit

Wage and hour class actions comprise approximately one third of all class action litigation. The Ninth Circuit Court of Appeals has taken note as during the past six months, a number of significant wage and hour cases were decided by the court. Most of these cases involved class allegations where the court considered issues related to employee classification, off-the-clock work and individual liability. These recent decisions provide guidance to employers defending against these claims, particularly since the court seems to have heightened the scrutiny applied to these class actions.

A. Preemptive Strike on Class Certification Permissible: On July 7, 2009, the Ninth Circuit published In re: Wells Fargo Home Mortgage, 571 F.3d 953 (2009) and Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (2009); each favorable for employers defending against wage and hour class actions. In Vinole, the Ninth Circuit affirmed a preemptive decertification motion. Plaintiffs sought to represent a proposed class of Countrywide external home loan consultants whom they alleged were misclassified as “exempt” outside sales employees. Answer→

California Wage and Hour Issues, Quirky Question # 107

Quirky Question # 107:

I keep hearing about companies getting hit with class action lawsuits under California’s tough wage and hour laws.  As I understand it, when a company treats its employees the same under a single policy, it is much more likely to have a class action certified against it.  Our company’s policy is to treat as exempt from overtime its outside sales representatives.

Does this count as a uniform policy, and does it open us up to a lawsuit?  Would we be better off treating some of the sales representatives as exempt and others non-exempt, based on some differences in job duties that already exist or we could implement? Answer→

Overtime Compensation and “Exempt” Employees, Quirky Question # 89

Quirky Question # 89:

Our company develops software and is based in California with another location in Arizona.  On occasion, our software developers in Arizona come to our California facility to perform some work.  Two of our Arizona based developers have recently complained that while they are in California they should be paid overtime for the work done at our headquarters whenever they work more than 8 hours in a day.  One of the Arizona based employees makes a salary of $60,000 and is classified as exempt.  The other Arizona based employee makes a salary of $77,000 and is also exempt.  Neither one of these employees has worked in California for a whole week; they worked Wednesday through Friday in California four times in a two month period.  They never worked more than 40 hours in a week but both want the company to pay them overtime as if they are a nonexempt employees for the days they worked ten hours.  They both claim that in California they are nonexempt employees and are entitled to overtime.  Must we apply California law to Arizona based employees that work in California so infrequently? Answer→