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You’re Fired: Not All Wage-Related Complaints Are Legally Protected

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Employers generally dislike employees who complain. An employer can run afoul of the law for taking adverse action against a complaining employee, when the employee makes a wage-related complaint that is protected by law. However, as illustrated by the recent case of Montgomery v. Havner, 700 F.3d 1146 (8th Cir. 2012), not all wage-related complaints in the workplace are legally protected, and sometimes an employee’s complaint can get them fired and put them in a position with no legal recourse.

In Montgomery, the plaintiff, Leslie Montgomery, filed a retaliation claim under the Fair Labor Standards Act (“FLSA”) against her former employer after allegedly being fired as a result of a heated phone conversation. The district court concluded that Montgomery failed to establish a prima facie case under the FSLA because no reasonable jury could find that her phone call could be considered as “a sufficiently clear and detailed” complaint needed in order for the employer to understand that the employee was alleging a violation of FLSA.

Montgomery worked as a paralegal for the defendants at Havner Law Firm, P.A. since October 2010 and had previously worked for defendant Kyle Havner before he started his own firm in September 2010. Kyle Havner’s wife, Kathy, worked as the office manager of the new firm and had many disagreements with Montgomery starting early on in Montgomery’s employment.

The incident in question occurred one afternoon on June 11th, 2011 when Montgomery had reached what she believed to be a “good stopping point” in her work at 4:45p.m and began to clean up her desk to prepare to leave for the day. Shortly thereafter, Kathy Havner saw Montgomery not working, and at 4:55p.m told her and two other employees that they could leave for the day and she would clock them out. Montgomery learned from one of the other employees that Kathy had clocked her out at 4:45p.m. while she had clocked the other two employees at 4:55p.m. Montgomery called Kathy later that evening to discuss the ten-minute time deduction issue and asked Kathy to adjust to adjust her time. Kathy agreed to adjust the time and the conversation “ended nicely” according to Montgomery. A little while later, Kathy called Montgomery back and brought up a separate office issue concerning employee breaks when the conversation became “heated.” After this conversation, Kyle Havner called Montgomery and notified her that she was being terminated from the firm.

Montgomery then sued and alleged retaliation in violation of the FLSA. In order to be successful in a FLSA retaliation claim, an employee must show as prima facie evidence that: (1) the employee participated in a statutorily protected activity; (2) the employer took an adverse employment action against the employee; and (3) there was a casual connection between the statutorily protected activity and the adverse employment action.

Montgomery argued that her phone call to Kathy to discuss the ten-minute deduction was a statutorily protected activity. The district court disagreed and concluded that no reasonable jury could find the phone call was a sufficiently clear and detailed FLSA complaint. As indicated in our previous blog post, the Supreme Court in Kasten v. St. Gobain ruled that oral complaints (as well as written) could constitute as a statutorily protected activity. Despite this ruling, the Eighth Circuit Court of Appeals, in affirming the district court in Montgomery, signals that a phone conversation such as this one is not a sufficiently clear and detailed complaint needed for an FLSA retaliation claim.

The lesson to be learned from the Montgomery case is that employees wishing to file a retaliation claim against their employer under the FLSA should take the necessary steps to file a sufficient complaint so that their actions amount to legally protected activity. That way, if the employee gets fired for being the “squeaky wheel,” then at least they can seek legal resource for the loss of their job. Specifically, when lodging a complaint about unpaid work time or unpaid wages, employees should reference the fact that they believe the employer’s conduct is a violation of federal law (such as the FLSA) or state law (such as the Missouri Minimum Wage Law). Also, in order to avoid potential disputes in litigation about the exact substance of their complaint, employees should consider putting their complaints in writing. While a written complaint is not necessarily required in order to support an FLSA retaliation claim, the existence of a written complaint makes it more likely that a Court or a jury would find that the employee engaged in statutorily protected activity and/or that unlawful retaliation occurred. Perhaps most importantly, an employee would be wise to consult with competent legal counsel before lodging a complaint, not only to determine whether the employer’s conduct violates the law, but also to obtain advice on how to complain in a legally-protected manner.

If you believe your federal or state wage rights have been violated, or if you believe you have been subjected to unlawful retaliation, you should contact a St. Louis employment lawyer.

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