Was it a protected Wage and Hour law complaint?

by on March 30, 2009 · 0 Comment POSTED IN: HR Info Center

Be careful before you take action, especially against an employee who has made even an “informal” complaint about Wage and Hour law compliance

“We’re really disappointed with the way you presented the schedule change to your team,” HR Director Barb Thoroughgood told field supervisor Brad Cahill.

“As a result of the things you said, we hear there’s a possibility some of them may seek legal representation,” she continued. “This isn’t the kind of conduct we expect from managers. You’re fired.”

“What!” Brad exclaimed. “I told them what I was instructed to, which was that the company was trying to improve operational efficiency.”

“Yes, but you also told them the change would probably result in a decrease in their overtime pay,” Barb said. “We don’t think that will be a consequence of the change, and you were supposed to reassure them on that point, not stir them up.”

Communicator or instigator?

“Well, they were worried about cuts in their O.T., and when I looked carefully at the new schedule, it seemed to me like that might actually happen,” Brad said. “So I agreed to take their concerns to my area manager, which I did. And I copied you on the e-mail I sent him.”

“According to those present at your staff meeting, you did more than agree to communicate their concerns,” Barb said sternly. “You told them they were right to be worried,” she said. “You took the employees’ side against the company. We don’t need managers who do that.”

After Brad was fired, he sued, claiming the company retaliated against him for making a wage-and-hour complaint.

Firing him, his lawyer said, was illegal under the Fair Labor Standards Act.

Did Brad win?

Under wage and hour law, no.

An appeals court said there were no grounds for damages.

Brad’s problem was that he never actually complained of anything he believed illegal. All he did was convey subordinates’ concern about the new schedule’s effect on their opportunity to work overtime – which isn’t guaranteed under wage and hour law protections.

The court said a supervisor would have to “step outside his role” as a conduit between labor and management before he could be considered as making an FLSA complaint and be protected against retaliation. He would take such a step by threatening to file a complaint himself or assisting other employees in asserting their FLSA rights – such as the right to be paid time-and-a-half for overtime actually worked.

Informal complaints

Despite the ruling for the employer, this case contains a warning: The court noted that an “informal complaint” of wage and hour law violations is enough to trigger protection against retaliation.

Thus, an employer should be careful about taking action against an employee who may not have made a formal wage and hour law complaint, but who has, for example:

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