Three Critical Steps Employers Can Take to Reduce Wage-and-Hour Liability

by Miller Canfield

A record-high 7,064 Fair Labor Standards Act (FLSA) suits were filed in federal court during the year-long period ending March 31, 2012, according to figures from the Federal Judicial Center. This follows the decade-long trend of continued increase in wage-and-hour litigation at both the federal and state level. Although the FLSA lags in appropriately meeting the realities of today’s workforce and economy, employers looking for proactive approaches to reduce the potential for these costly lawsuits can find solace in recent federal court decisions, which provide guidance as to steps employers can take.

Step 1: Establish a Solid and Reasonable Complaint Procedure

In White v Baptist Memorial Health Care Corp., the U.S. Court of Appeals for the Sixth Circuit followed the lead of the Eighth and Ninth Circuits when it rejected claims brought by a former nurse seeking unpaid wages for missed and unpaid meal breaks.

Under the hospital’s policy, employees working shifts of six or more hours receive an unpaid meal break that was automatically deducted from their paychecks. However, the policy also advised employees to report missed or interrupted meal breaks so that the hospital could properly compensate the employee for the additional time worked. Although White occasionally complained to her supervisors that she never received a lunch break, she never told her supervisors or the human resource department that she was not compensated for those missed meal breaks.

The Sixth Circuit held that “if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process.” In so ruling, the court rejected White’s argument that the hospital should have known about the unpaid time because of her complaints to her supervisors. According to the Sixth Circuit, “When an employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA.”

What Steps Should Employers Take?

Companies doing business within the Sixth, Eighth and Ninth Circuits, and elsewhere, should review their pay policies to ensure they have a reasonable reporting procedure in place for employees to report unpaid time worked and to report any failure to receive their proper compensation. Such a procedure should also provide a mechanism for investigating and remedying meritorious claims. Asking employees to acknowledge reporting policies will help protect against claims for unpaid working time.

Step 2: Establish a Policy and Procedure to Document and Investigate Oral Complaints

In a case that has led to an uptick of FLSA retaliation lawsuits by employees, on March 22, 2011, the United States Supreme Court held that the FLSA’s anti-retaliation provision protects employees who file oral complaints. In Kasten v Saint-Gobain Performance Plastics Corp., an employee alleged that he was discharged after he orally complained to company officials that the placement of time clocks violated the FLSA because it prevented workers from receiving credit for time spent donning and doffing required protective gear and walking to work areas. 

The FLSA’s anti-retaliation provision forbids an employer from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint….” The district court dismissed the case after concluding that the FLSA did not cover oral complaints.

Reversing the dismissal, the Supreme Court broadly interpreted the phrase “filed any complaint” to include both oral and written complaints. The Court acknowledged, however, that this language “contemplates some degree of formality” and requires that the employer receive “fair notice that a grievance has been lodged.” The Court further explained that complaints protected by the FLSA’s anti-retaliation provision “must be sufficiently clear and detailed for a reasonable employer to understand it.” Notwithstanding its broad interpretation of the phrase “filed any complaint,” the Court declined to address whether the statute protects complaints to private employers, as opposed to government agencies. Nevertheless, a majority of the courts to address this issue, including the Sixth and Seventh Circuits, have concluded that the FLSA protects informal complaints to employers.

What Steps Should Employers Take?

Recent Supreme Court decisions have broadly interpreted the anti-retaliation provisions contained in federal employment statutes. The Kasten decision continues this trend. Therefore, employers must carefully evaluate any personnel actions that will affect employees who have previously complained (either orally or in writing) of
violations of wage-and-hour or anti-discrimination statutes. Perhaps even more importantly, employers should establish a procedure for documenting and responding to oral complaints in conjunction with training frontline supervisors in how to distinguish complaints under Kasten versus typical employee gripes.

Step 3: Establish a Policy Regarding Non-exempt Employees’ Remote Access and Virtual Workspaces

In Lewis v Keiser Sch., the United States District Court for the Southern District of Florida held that e-mails sent during lunch did not constitute “work” because they “were not lengthy and could not have taken more than a few minutes to draft and send.” The court also ruled that Lewis herself had created the record of being at lunch by checking out of work (and thus not working). Further, the fact that certain managers might have received those e-mails during her lunch hour did not demonstrate that the employer understood her to be performing work off the clock, i.e., that it suffered or permitted her to work, the court held.

Lewis follows favorable decisions from other district courts defeating claims brought by non-exempt employees alleging off-the-clock work based on their access to or minimal usage of electronic communication systems, whether e-mail, text message or otherwise. However, in each case the employer had solid policies in place and the use of remote access or smartphones was limited.

What Steps Should Employers Take?

Companies should consider adopting a policy prohibiting non-exempt employees from performing work outside of working hours and specifically prohibiting the use of remote access or smartphones for work outside of normal working hours. Employers should also train management employees to take appropriate action when non-exempt employees fail to comply with this policy. Other steps employers could take to limit potential liability for compensable off-the-clock work are limiting the hours during which remote access is accessible or limiting remote access to exempt employees only. Training supervisory and management level employees to understand that they should not send non-exempt employees e-mail or text messages after hours or ensure that the message is clear that the employee should not respond until the next working day.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Miller Canfield | Attorney Advertising

Written by:

Miller Canfield

Miller Canfield on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.