Seventh Circuit Denies Summary Judgment in Wage Retaliation Case

After the Supreme Court decided that oral complaints provide protection from retaliation under the FLSA, as discussed in this earlier post, the case continues to make good law for employees. On remand, the Western District of Wisconsin granted summary judgment to the employer on the employees claim for retaliation only to be reversed later by the Seventh Circuit.

The Seventh Circuit explained that to “establish a prima facie case of retaliation under the direct method, an employee must show: (1) that he engaged in protected expression; (2) that he suffered an adverse employment action; and (3) that a causal link existed between the protected expression and the adverse action.” Circumstantial evidence can be used to establish the causal link which allows a jury to infer retaliation where: (1) there is evidence of suspicious timing, ambiguous statements or behaviors; (2) evidence that similarly situated employees were treated differently; or (3) a pretextual reason for adverse employment action.

As with many retaliation complaints, there was suspicious timing – the employee asked a supervisor if she had seen information about a class action against the employer. This statement was then relayed by email to human resources two days later and the employee was terminated. The employee also introduced evidence that another employee had been treated more favorably. Finally, there was evidence before the Court that employer had changed the initial reasoning for the termination from a violation of one policy to the violation of another policy.

Importantly, despite the employer denying doing anything wrong and presenting arguments, backed by their own evidence, to rebut the arguments made by the plaintiff, the case must go to a jury. Too often, discrimination cases are decided on summary judgment despite there being disputed facts as to what happened. At times, it seems that the summary judgment standard is not properly applied – that all facts are viewed in the light most favorable to the non-moving party, drawing all reasonable inferences in their favor, and that in doing so, summary judgment is improper when a reasonable jury could return a verdict for the non-moving party. In this case, the Seventh Circuit properly required the disputed facts be placed before a jury to decide what version of the story is true.

The Court’s opinion can be found here - http://www.ca7.uscourts.gov/tmp/OE0M17QI.pdf

Salaried Workers May Still Be Entitled to Overtime

I was talking to a friend of mine yesterday and the topic of overtime came up.  She was stunned that people who are paid a salary could and often are still entitled to overtime compensation.  As we previously wrote in this blog, an employer cannot avoid paying overtime compensation simply by paying its employees a salary rather than on an hourly basis.  See our previous post here. 

A recent case we filed against Beer Capitol Distributing is a prime example of this often misunderstood principle.   

Just because you are paid a salary, it does not follow that you should not still receive overtime compensation. 

DOL Releases FLSA Retaliation Fact Sheet

In a March 22, 2011 decision, Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court held that the FLSA prohibits retaliation against employees for making a complaint about FLSA violations, even if the complaint is oral, as opposed to being written.  In December 2011, the Wage and Hour Division of the Department of Labor issued a Fact Sheet providing general information concerning the anti-retaliation FLSA provision.  Fact Sheet # 77A: Prohibiting Retaliation Under the Fair Labor Standards Act presents information on prohibitions, coverage, and enforcement.  Under the Coverage section, the Fact Sheet explains that the provision applies even if there “is no current employment relationship between the parties” and it also applies “to all employees of an employer even in those instances in which the employee’s work and the employer are not covered by the FLSA.”  Most importantly, the fact sheet includes the standard set forth in Kasten v. Saint-Gobain Performance Plastics Corp.: “Employees are protected regardless of whether the complaint is made orally or in writing.”  For additional information, visit: http://www.wagehour.dol.gov.