Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834, 3/22/11

Can an employer retaliate against an employee who makes an oral complaint about an FLSA violation or does that complaint have to be in writing in order to trigger antiretaliation provisions?

The Supreme Court held today that a complaint does not have to be in writing in order to trigger antiretaliation provisions. However, the Court did leave a question unanswered:

Alternatively, Saint-Gobain claims that it should prevail because Kasten complained to a private employer, not tothe Government; and, in Saint-Gobain’s view, the antiretaliation provision applies only to complaints filed with the Government. Saint-Gobain advanced this claim in the lower courts, which held to the contrary. 570 F. 3d, at 837–838; 619 F. Supp. 2d, at 613. But Saint-Gobain said nothing about it in response to Kasten’s petition for certiorari. Indeed, it did not mention the claim in this Court until it filed its brief on the merits. We do not normally consider a separate legal questionnot raised in the certiorari briefs. See this Court’s Rule 15.2; Caterpillar Inc. v. Lewis, 519 U. S. 61, 75, n. 13 (1996). We see no reason to make an exception here.  Resolution of the Government/private employer question is not a "‘"predicate to an intelligent resolution"’" of the oral/written question that we granted certiorari to decide. See ibid. (quoting Ohio v. Robinette, 519 U. S. 33, 38 (1996)). That is to say, we can decide the oral/writtenquestion separately—on its own.

So whether a complaint (written or oral) to an employer rather to a government agency triggers the antiretaliation provision is still undecided by the Supreme Court.

The animation above is to show the point of the case, but does not take much from it in the way of facts or dialogue.

For blog coverage see Rick Bales at Workplace Prof Blog,  Philip Miles at Lawffice space, and Michael Maslanka at Work Matters and Jon Hyman at Ohio Employer Blog.

Worldmark by Wyndham, 356 NLRB 104 (2011)

Here's a pca case with a little bit of fashion for you to boot.

Wyndham changed its "resort casual" dresscode for its sales staff and the change did not go over well. The new code meant that shirts had to be tucked in. Tommy Bahama shirts were particularly popular with the sales staff, especially with salesman Feathers who held the title "King of Tommy Bahama Shirts." Tommy Bahama shirts are not meant to be tucked in.  Salesman Foley (no relationship) returned from vacation to find out about the new policy. Protected concerted activity ensued.

The animation is based on the facts of the case, although certain changes were necessary for both artistic and technical reasons.  The voice over is my poor version of a Bill Lumbergh.  

For more on this case, check out Jeff Hirsh's post at Workplace Prof Blog and Michael Eastman's take at NLRB Insights.

I couldn't get my animated characters to wear Tommy Bahama style shirts, so here is my son in one. Clearly this shirt should not be tucked in.
 

Charlie Sheen

Charlie Sheen has commanded the news this week with his antics, so I guess I'll jump on the bandwagon and ask this: What are the employment law issues in all of this? Drug policies? Insubordination? Tortious interference? Slander?


Amy Spies over at the Huffington Post kind of brings the matter around to employment law matters by comparing Sheen to Howard Beale in the Network, and then both to ordinary people:

They are not alone. Obviously, Howard Beale and Charlie Sheen's battles with their corporate bosses are high-class, first-world feuds, but angry people in their audiences are also mad as hell without comparable megaphones, star power, huge bank accounts, and audiences; they, too, don't want to (and some literally can't) financially take it anymore. Unemployment statistics overflow with individuals, far less highly compensated, who having serving their companies for decades, find themselves suddenly fired or having their jobs disappeared, replaced by young, malleable robots or automated voices or parking pay machines. The movie Network was fresh 35 years ago, when we were more naïve in cohabiting with cold corporations. Now, post-recession, we're battle-scarred, losing homes to mortgages going upside-down, seeing savings turn negative due to fiscal greed and fraud, feeling our self-esteem, senses of self and safety go poof along with pensions and health-care plans.

 Fox News reports on "How to Deal With the Charlie Sheen of Your Workplace."

“Financially, it is actually cheaper to send someone to treatment than it is to rehire someone,” Sebetich said. “If a company chooses to terminate, it is likely they will hire someone again in the future who has a problem.”

Hopefully something good can come of this public meltdown.

Updates: 

1. Jon Hyman at the Ohio Employment Law Blog asks whether CBS has opened itself up to a ADA suit with its termination letter.

and follows it up with
http://www.ohioemployerlawblog.com/2011/03/i-love-it-when-im-right-charlie-sheen.html

and http://www.ohioemployerlawblog.com/2011/03/wirtw-168-tiger-blood-winning-whatever.html

2.  Mark Toth at Manpower Employment Blawg sees lessons for employers in the Sheen-CBS dispute.

3. Philip Miles has named Sheen's suit his case of the week.