Workplace Retaliation Rules - Broader than Ever!

Workplace Retaliation Expands: The Supreme Court Speaks

This week the U.S. Supreme Court continued on its "retaliation roll" with another case broadly interpreting workplace-related anti-retaliation regulations. In Kasten v. Saint-Gobain Performance Plastics, U.S. S.Ct. 3/22/11, the Court made clear that verbal complaints to employers are subject to the anti-retaliation laws.

Case Overview

Kasten alleged that he was discharged in retaliation for making oral complaints to his superiors that the employer's placement of time clocks violated the Fair Labor Standards Act (FLSA). The FLSA's anti-retaliation provision forbids employers "to discharge ... any employee because such employee has filed any complaint" alleging a violation of the Act.

The Supreme Court's Ruling

The U.S. Supreme Court, in a nearly unanimous decision, ruled that the scope of the statutory term "filed any complaint" includes oral, as well as written, complaints. The Court did not rely on the text of the Act alone and instead looked to other factors such as;

• The FLSA's basic objectives
• Interpretation by the Secretary of Labor
• Consistency with the interpretation of the National Labor Relations Act

The Kasten decision follows a recent (1.24.11) blockbuster U.S. Supreme Court case that expanded workplace retaliation to cover third parties in a “zone of interests” related to the complainant. In Thompson v. North American Stainless, LP, the high Court held that the anti-retaliation provision of Title VII applied to an individual harmed by retaliation, even if that person had not himself filed a charge of discrimination. The Court ruled that a “relative” or “close associate” of a worker who filed a discrimination claim is protected against retaliation.

Implications for HR & Management Professionals

For HR Professionals, these important, expansive cases highlight the need for comprehensive “No Retaliation” policies that cover all potential underlying grounds for retaliation, including, but not limited to, unlawful harassment, discrimination, FMLA, NLRA, FLSA, OSHA, EPA, ERISA, PDA, USSERA, Sarbanes-Oxley Act, etc.

The cases also make training in retaliation prevention imperative. All employers should institute and implement an anti-retaliation training program, to be provided at least yearly, to all supervisors and employees. Such training should cover:

• The employer’s anti-retaliation policy and all laws covered by the policy,
• Examples of retaliation in the employer’s specific industry or business,
• The employer’s internal procedure for bringing complaints of unlawful retaliation, and
• The various parties that can engage in retaliation, including the employer, third parties and coworkers.

Supervisory training should also highlight how to identify potential and actual retaliation incidents, and when to involve Human Resources in a possible retaliation situation.

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