Donning, Doffing, and the Hourly Wage: Worker Can Bring FLSA Claim

For certain jobs, getting dressed for work is compensable. In such jobs, employers should place time clocks where employees can access them before changing into their work clothes.

Time clock placement, like real estate, is controlled by location, location, location.

Over the last five years, Kevin Kasten’s Fair Labor Standards Act lawsuit about time clock placement was also controlled by location: It bounced like a pinball between the district court, Seventh Circuit Court of Appeals, and the Supreme Court. This week, the Seventh Circuit Court of Appeals sent Kasten’s suit back to the district court, concluding that the court should hear his unlawful retaliation claim.

Kasten sued his employer, Saint-Gobain Performance Plastics Corporation, alleging unlawful retaliation under the FLSA for oral complaints regarding the company's time clock location. Kasten complained that Saint-Gobain's time clocks were placed in locations which caused him to frequently forget to punch in, notifying his supervisors on at least five occasions that the location away from the donning and doffing area was "illegal."

In accordance with Saint-Gobain policy, Kasten was suspended and ultimately terminated after he failed to punch in on several occasions.

The district court granted summary judgment for Saint-Gobain on the ground that oral complaints do not constitute protected activity under the FLSA, and the Seventh Circuit affirmed the decision. On certiorari, however, the Supreme Court vacated and remanded that decision, holding that oral complaints may qualify as protected activity where they provide "fair notice" that an employee is asserting his rights under the FLSA.

On remand, the district court concluded that Kasten's oral complaints did provide Saint-Gobain with "fair notice" that he was asserting rights under the FLSA, but granted summary judgment for Saint-Gobain because Kasten had "failed to create a dispute of material fact regarding causation."

To establish a prima facie case of retaliation under the direct method, a plaintiff must show: (1) that he engaged in protected expression; (2) that he suffered an adverse employment action; and (3) that a causal link existed between the protected expression and the adverse action.

Because Kasten produced evidence of suspicious timing, ambiguous statements and behaviors, and pretext which would support a jury inference of retaliation, the Seventh Circuit reversed the district court's grant of summary judgment in Saint-Gobain's favor and remanded the case.

Related Resources:

• Kevin Kasten v. Saint-Gobain Performance Plastics (Seventh Circuit Court of Appeals)
• Sheriff David Clarke Wins Unlawful Retaliation Appeal (FindLaw's Seventh Circuit Blog)
• Court Finds Insubordination, Dismisses FMLA Retaliation Claim (FindLaw's Tenth Circuit Blog)