Fenwick Employment Brief April 8, 2011

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In this issue: U.S. Supreme Court Holds Verbal Complaints Are Protected By FISA Anti-Retaliation Provisions; Two California Jury Verdicts Underscore Proliferation of Retaliation Suits; Defendant’s “Overwhelming Evidence” of Poor Performance Defeats ADA Claim; Court Refuses to Recognize Hostile Work Environment and Harassment Claims under USERRA; Ninth Circuit Upholds One-Strike Rule for Drug Testing Against ADA and FEHA Challenge; Employer’s Swift and Serious Response to Initial Complaint of Discrimination Pays Off; California Appellate Court Ruling on Seventh Day Premium Pay; EEOC Issues Final Regulations Implementing ADA Amendments Act

Excerpt from 'U.S. Supreme Court Holds...'

The Supreme Court ruled last month that workers who complain about wage violations to their employer are protected from retaliation under the Fair Labor Standards Act (FLSA), regardless of whether those complaints are oral or written. Prior to this ruling in Kasten v. Saint-Gobain Performance Plastics, the question of whether verbal complaints were sufficient to support a FLSA retaliation claim was unsettled law.

The issue began when Plaintiff Kasten, who had worked at the Wisconsin manufacturing plant of Saint-Gobain Performance Plastics Corporation, verbally complained to his shift supervisor and managers about the location of the time clocks that recorded his working hours. Kasten pointed out that the clocks were placed in an area far from the dressing room where the employee usually changed in and out of their protective gear, resulting in a loss of recorded time and wages. Kasten submitted his verbal complaint through the company’s formal grievance procedure.When he was later fired for allegedly unrelated reasons, he claimed that his termination had actually been an act of retaliation. The lawsuit, however, was dismissed when the district court judge ruled that FLSA anti-retaliation provisions did not cover oral complaints. On appeal, the Seventh Circuit U.S. Court of Appeals in Chicago agreed.

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