Can I Be Fired For Making An Oral Complaint?

If the complaint is of a violation of the Fair Labor Standards Act ("FLSA"), the answer is "no."  That's what the U.S. Supreme Court held today in the case of Kasten v. Saint-Gobain Performance Plastics Corp.

Kevin Kasten complained to his bosses about the location of the time clock at work.  Specifically, he complained that the location prevented workers from getting paid for the time spent putting on and taking off their protective gear.  Under the FLSA, employees are required to be paid for such "donning and doffing" time.  Mr. Kasten complained to his supervisor, to HR, to his lead man and to his Operations Manager that he thought the location was illegal and the company would lose if it ever went to court.  When he was fired, Mr. Kasten sued under the FLSA's anti-retaliation provision, which makes it illegal "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ." under the FLSA.

Mr. Kasten's suit was tossed out of court, on the grounds that the FLSA's anti-retaliation only applies to written complaints.  The Seventh Circuit Court of Appeals in Chicago agreed, so he took it all the way up to the U.S. Supreme Court.  And won.  The court held, in a 6-2 decision (Justice Kagan did not participate), that the "filed any complaint" language includes oral as well as written complaints.

Justices Scalia and Thomas dissented (gee, there's a surprise).  In their view, Mr. Kasten should lose, not because his complaints were oral rather than written, but because they were made to the employer rather than to the government.  In their view, the only way a complaint can be "filed" is with the government.  The majority declined to reach this issue, so it remains an open question.  In my view, this narrow, restrictive view undermines the goals of the FLSA and unfairly punished employees who choose to take the lesser, and perhaps more reasonable, step of complaining internally before escalating to the point of calling the government.

Regardless of this open question, this case is a nice victory for workers.  We need more like it.

Yes, You Can Be Fired For Being A Jerk

File this one under bad judgment.  In a decision to be released on March 22, the Connecticut Appellate Court found that being rude, insulting and obnoxious to your boss is sufficient misconduct to disqualify an employee from collecting unemployment when he gets fired.  In Joseph v. Administrator, Unemployment Compensation, the employer discharged the employee, an accountant, "immediately after he sent his supervisor two highly insulting and demeaning e-mail messages questioning her accounting and supervisory abilities."  This wasn't the first time the employee had been insulting and demeaning; he previously had accused co-workers and a former supervisor of both incompetence and some unspecified "fraud."  Unemployment denied his claim for benefits, in part because his offensive e-mails were not spontaneous, during a heated discussion, but were a deliberate attempt to undermine his supervisor.  The Appellate Court agreed, finding that, because the e-mails insulted his supervisor personally and undermined her supervisory authority, his actions rose to the level of willful misconduct in the course of employment.

You would think it's kind of obvious, that being an obnoxious jerk towards your boss is a good way to get yourself fired.  Could the employer have done something short of firing him?  Of course they could.  But the important point is that they were not required to do so.  So remember, my grandmother's advice (if you can't say something nice, don't say anything at all) applies with the force of law in the workplace.

CT Appellate Court Refuses To Bind Employer To Progressive Discipline Policy

In a blow to employee rights, the Connecticut Appellate Court refused to require an employer to live up to its progressive discipline policy.  In the case of Brule v. Nerac, Inc., the Court found that the employer was not bound by the progressive discipline policy set forth in its management training course, because the language was too vague to give rise to a contractual obligation.

The employer provided a management training course, which included training materials directing managers to provide "progressive discipline, open communication and an opportunity for improvement" prior to terminating their subordinates’ employment.  The employees, who were terminated without following progressive discipline, claimed that this training course formed contractually binding obligations not to terminate them without first following progressive discipline.  The Court decided against the employees, holding that the training materials merely set forth "a series of suggested principles that the managers should observe. . . ." (emphasis in original).

This decision once again shows that, for most workers, progressive discipline policies are worthless, because the employer can toss them out the window at any time.  I can't tell you how many times I've had people call me to complain that they were fired without following a progressive discipline policy, and I've had to tell them that I couldn't help them.  When your employer has you sign off on the employee handbook with a big disclaimer that says you are an employee at-will, that means the employer is not bound by any of the policies in the handbook.

Supreme Court Makes It Easier to Prove Discriminatory Firing

While I am concerned about the current Supreme Court's tilt to the right, occasionally they surprise me.  Such is the case with the March 1, 2011 decision in Staub v. Proctor Hospital.  In an 8-0 decision (Justice Kagan did not participate), Justice Scalia, of all people, made it easier to prove that a termination was for a discriminatory reason.

The plaintiff, Vincent Staub, was a member of the Army Reserves.  According to the Court, his supervisor at the hospital where he worked was "hostile to Staub's military obligations."  Mr. Staub ultimately was fired by the hospital's vice president of HR.  Mr. Staub claimed that his termination was unlawful, even though the VP of HR was not the person who discriminated against him, and sued under a statute, the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), that makes it illegal to discriminate against service members.  This sort of case is known as a "cat's paw" case, where a fired employee seeks to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.

Before this case, most courts would deny such a claim unless the discriminating supervisor exercised such “singular influence” over the decision-maker that the decision to terminate was the product of “blind reliance.”  This is a very hard standard to meet.  Justice Scalia's opinion lowered the bar.  The new standard holds an employer liable for discrimination when a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause (and ultimately does cause) an adverse employment action such as a termination.

While this case technically only applies to claims under USERRA, the same logic applies to claims of other types of discrimination under other federal anti-discrimination laws.  This case is a rare instance of our conservative Supreme Court making it easier, not harder, for workers.  And to that, I say "Well done!"