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June 28, 2011

There's an App for that and Other Recent FLSA Developments

There have been several important recent developments under the Fair Labor Standards Act ("FLSA"), some good and some bad for employers.

First, the Supreme Court has held that an oral complaint is sufficient to trigger the retaliation provision under the FLSA. In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011), the Supreme Court ruled that an oral complaint about a time-keeping practice was protected under the FLSA's anti-retaliation provision. The employee, Kevin Kasten, verbally complained that the company's time clock was not properly located near the employee locker room, resulting in employees not getting properly paid for donning and doffing their work clothes. He was subsequently terminated, allegedly for improperly punching in and out. The anti-retaliation provision in the FLSA prohibits terminating or otherwise discriminating against an employee who has "filed any complaint" 29 U.S.C. §215(a)(3). The district court held that an oral complaint did not constitute "filing" a complaint and granted the company summary judgment. The Seventh Circuit Court of Appeals affirmed. The Supreme Court, in a six to two decision, vacated the judgment and held "filing any complaint" includes both oral and written complaints for purposes of the protection of the anti-retaliation provision of the FLSA.

The court did not rule on whether the anti-retaliation provision applies only to complaints made to a governmental agency, or also to internal complaints made to the employer. The court did note, however, that a complaint "must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." In light of this decision, employers would be well-advised to properly address any wage and hour concerns raised by employees, whether written or oral, and to seek advice from legal counsel prior to terminating an employee who has made a complaint in respect of wage and hour issues.

In Kuebel v. Black & Decker, No. 10-2273 (May 5, 2011), the Second Circuit held that an employee's time spent commuting was not compensable, even if he performed work at home immediately before and after commuting to and from the workplace. Greg Kuebel, a "retail specialist" responsible for marketing Black & Decker's products at six Home Depot stores, did not report to a central office, but was required to travel between the stores in his territory. He often read and responded to company email, checked voice mail, and reviewed sales reports at home before or after he made store visits. He was compensated for the time he spent at home performing work-related duties, and was also compensated for time spent traveling between the stores. However, he argued that, because his work day began when he started working at home in the morning, and didn't end until he finished working at home in the evening, he should also be compensated for the time spent commuting from home to the first store visit, and from the last store visit back home. The court disagreed, noting that the work Mr. Kuebel did for the company (for which he was compensated) could have been done at any time, not necessarily immediately before and after his commute, and therefore, his commuting time was not compensable under the "continuous workday" rule. However, in these days of ubiquitous smartphones, employers should be careful to require non-exempt employees to record their time spent actually working at home, and should compensate them as required.

Finally, and perhaps the most challenging development for employers, is the launching of a free iPhone application by the U.S. Department of Labor. The app is intended to allow employees "to independently track the hours they work and determine the wages they are owed." The current application is available in English and Spanish for the iPhone, iPod touch and iPad, but the DOL is considering similar apps for the BlackBerry, Android and other smartphones. The DOL claims that "this information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records." This tool for allowing employees to easily keep independent time records is likely to lead to increased wage-hour claims from employees. This underscores the importance of employers keeping accurate contemporaneous time and payroll records. For employers who use time cards or time sheets, rather than time clocks, computer login or other similar time-recording devices, it is advisable to have the employee verify the time record on a weekly basis.

If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.


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