An "adverse action" under FLSA guidelines can be lost overtime opportunities

by on March 27, 2009 · 0 Comment POSTED IN: HR Info Center

FLSA compliance can’t wait on a lengthy grievance procedure

If an employer suspects a supervisor of bias, but waits for an employee to complain – hoping the grievance process will fix the problem – the employer can get in trouble, even if the employee’s grievance is satisfied.

Worker kept a record

At a company where overtime was supposed to go to employees with the most seniority, one supervisor clearly favored white employees over Hispanics.

On about a dozen occasions in less than one year, he offered white workers overtime at the expense of Hispanics who had worked for the company longer.

The bigoted supervisor didn’t think anyone would complain. And he certainly didn’t imagine a disgruntled worker would document each event. When the Hispanic worker complained, the supervisor relented and gave him overtime.

The worker filed a lawsuit under FLSA guidelines. In court, the employer insisted it did nothing wrong. Sure, the worker had been denied overtime, but when he complained he was awarded it.

Employer failed to act within FLSA guidelines

The court ruled in the employee’s favor. In reaching its decision it noted that an adverse action under FLSA guidelines occurs when an employer knows a worker is treated unfairly, but simply waits for the worker to use the grievance process. In this case, there was sufficient evidence to show the employer knew about the bias. But instead of proactively fixing it, it waited for the grievance plan to work.

Cite: Fonseca v. Sysco Food Services

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