BUSINESS LAW: Retaliation claims on the rise

2012-12-22T14:40:00Z BUSINESS LAW: Retaliation claims on the riseJames Jorgensen Times Business Columnist
December 22, 2012 2:40 pm  • 

Retaliation claims are on the rise. They occur when a person exercises a protected right, only to then suffer an adverse employment action. Consider this case under the Fair Labor Standards Act, or FLSA:

In order to save money, the employer stopped providing its employees with an extra half hour of unpaid lunchtime for Thanksgiving and Christmas.

At a meeting, an employee asked whether the lunchtime program would be reinstated. A supervisor accused the employee of having a “bad attitude” and gave him a written warning. The employee was fired six months later. He violated a performance improvement plan by leaving his workstation unattended two times in the same day.

The employee claimed he was fired in retaliation for questioning the elimination of the unpaid lunch break time. He claimed this violated the FLSA.

The court ruled for the employer and based its decision on three facts. First, even though oral complaints can be made on FLSA matters, the substance of the employee’s complaint was not protected. The FLSA does not compel lunch breaks of any duration, and since the lunch break was unpaid, its elimination could not affect issues like overtime.

Second, the employer stated a non-retaliatory reason for the termination: poor job performance. There was no evidence that the reason was a pretext for discrimination.

Finally, the court noted that the termination occurred six months after the employee’s complaint. Although there is no set time limit, the court stated that it is “doubtful” a retaliation claim can survive a six month gap between the protected activity and the alleged retaliation.

Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.

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