There’s good news (sort of) and bad news for employers in the outlook for 2012, say attorneys from the Employers Counsel Network. They covered new developments in wage/hour compliance during a presentation at BLR’s Advanced Employment Issues Symposium, held recently in Nashville and Las Vegas.
Wage and Hour: “No One Is in Compliance”
No one is in compliance with wage and hour laws, says panelist Kara Shea, a member of Miller & Martin, PLLC. She quipped that, “There is some good news on the wage/hour front … for attorneys.”
Shea did note that the Wal-Mart v. Dukes decision will have some impact, especially on larger class actions. She expects it to afford some assistance in getting a class uncertified, or in preventing certification in the first place.
However, the Wal-Mart case isn’t over yet. Yes, the Supreme Court did decide that the 1.5 million member class was too big to certify. It found that the corporate culture and the discretion by local managers did not amount to enough “commonality.”
However, the suit will come back in smaller versions. There are 50 or more state-based actions now in the works, Shea says.
Bottom line? Don’t think that you’re off the class action hook because of Wal-Mart.
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Kasten v. St. Gobain
Another Supreme Court Case, Kasten v. St. Gobain, clarified that an oral complaint can be the basis of an FLSA retaliation charge, says panelist Susan Fentin, a partner at Skoler Abbott & Presser, PC.
In the case, Kasten had complained—orally—that time clocks were located such that employees could not get to them to punch in until after taking time to don special clothing. Then, at night, they had to punch out before changing out of the clothing. Kasten alleged that he was terminated for making the complaint.
The company had tried to say that since the law said “filed” a complaint, it had to be in writing to be protected; the Supreme Court found that the law spoke of filing “any” complaint, and that, furthermore, the law’s intent clearly included an oral filing.
Unfortunately, says Fentin, the decision left a few questions unanswered:
- Does the employee have to complain to the government?
- Is an oral complaint to the employer sufficient basis?
- How formal must the complaint be?
It’s a good practice to honor complaints however they come to you. Retaliation doesn’t sit well with juries, and they are not likely to excuse an employer’s shabby treatment of an employee based on a “technicality.”
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Courts Losing Patience
Shea believes that some courts are losing patience with poorly pled wage and hour class actions. Some courts have dismissed “cookie-cutter” off-the-clock cases, asking for more specific information.
For example, Shea says, you might have a complaint that says, “I worked off the clock; I was not paid for the time.” That’s not likely to fly any more. The court will want specifics.
Also, Shea has noticed that some federal judges feel less compelled to follow positions issued by an increasingly activist DOL. On the other hand, agreements generally have to go before a judge now, and, anecdotally, it’s hard to get some judges to agree to the terms employers offer.
In tomorrow’s CED, more from the Advanced Employment Issues Symposium – plus an introduction to a comprehensive compliance resource – especially for California employers.
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It’s a safe bet that oral complaints are enough for retaliation claims under state wage and hour law, too.
It’s a safe bet that oral complaints are enough for retaliation claims under state wage and hour law, too.