The U.S. Supreme Court decided that both verbal and written complaints by an employee about violations of the Fair Labor Standards Act (“FLSA”) are considered protected conduct under the anti-retaliation provisions of the law. These complaints typically relate to an employee not getting paid overtime or not getting paid anything for hours worked. The decision is Kasten v. Saint-Gobain Plastics Corporation, March 22, 2011.
The decision was based on the following language from the FLSA, Sec. 215(a)(3):
[An employer may not] discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.
The Federal Congress passed important amendments to the Uniformed Services Employment and Restoration Rights Act (“USERRA”) that will benefit veterans and current servicemembers in private and public employment outside the armed forces. The Veterans’ Benefits Act of 2010 (H.R. 3219) ("VBA"), among other things, would clarify that USERRA prohibits wage discrimination against veterans and current servicemembers. The measure passed the U.S. Senate on September 28th, 2010, and the U.S. House of Representatives on September 29th. President Obama, who co-sponsored bills containing these amendments when he was a senator, is expected to sign the measure.
USERRA is intended to encourage non-career uniformed service so that America can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.
If you accrued vacation pay during your employment and were otherwise entitled to use or get paid your vacation benefit, an employer may be obligated to pay that vacation benefit to you upon termination. An employer’s policies may affect this analysis. If the employer refuses to pay the vacation benefit upon termination, then it may be in breach of its work agreement with you. If you resign your position based on an employer’s promise that it will pay your vacation benefit if you agree to resign, and the employer then refuses to pay the vacation benefit, the employer may be in breach of that promise to you. Either way, if you have a reasonable expectation of getting paid the vacation benefit on termination because of a policy or express promise from the employer, and the employer does not pay the benefit, you may have claims that you can bring as wage claims under Wisconsin law. The Wage and Hour Bureau of the Equal Rights Division for the Wisconsin Department of Workforce Development should take a complaint on this basis. A private attorney can also enforce your rights.
The Wisconsin Court of Appeals, District II, issues an opinion on June 10, 2010, affirming a decision of a trial court that permitted an employer to terminate or fire an employee for not agreeing to pay it back for amounts that the employer overpaid her. Faraday-Sultze v. Aurora Medical Center of Oshkosh, Inc., __ Wis.2d __, 2009AP2429 (Wis. App. 6/2/2010). Wisconsin law prohibits wage deductions from the wages due or earned by any employee for defective or faulty workmanship, lost or stolen property or damage to property, unless the employee authorizes the employer in writing to make that deduction or unless the employer and a representative designated by the employee determine that the theft is due to the employee’s negligence, carelessness, or willful and intentional conduct, or unless the employee is found guilty or held liable in a court of competent jurisdiction. Wis. Stat. 103.455. Furthermore, an employer may not terminate or fire an employee for refusing to agree to such a deduction. Wandry v. Bull’s Eye Credit Union, 129 Wis. 2d 37, 384 N.W.2d 325 (1986). The court said that the public policy of the statute is to “prevent the employer from arbitrarily deducting hard earned wages at its prerogative.” The court in the Faraday-Sultze matter, however, found that since the employee did not earn the amounts the employer overpaid her, the law does not protect her.
In Wisconsin, the employment relationship is at-will. The employer and employee determine the terms and conditions of employment and, absent a promise of employment for a certain period of time, the relationship and its terms can end or change at anytime. Because of the at-will relationship, an employer may take a raise back without violating the law. What it may not do is to take pay back for work already performed at the rate under the pay raise. It’s a matter of expectations. Where an employee works for an agreed upon wage, even if it was the result of an unexpected pay raise, the employee is entitled to get paid at that rate. Once the work is performed, the employer may not modify the rate of pay for that work already performed. Taking pay back or failing to pay the wage at the rate agreed upon when the work was performed will violate the employee’s contractual rights and state wage laws. Deducting future paychecks for any such retroactive reduction in the wage rate also violates Wisconsin law.
The Seventh Circuit Court of Appeals recently decided the appeal of employees asking to be paid for time spent washing off at the end of a shift, which would sometimes cause overtime. The Seventh Circuit is the federal appellate court covering cases arising in Wisconsin and other states in the Midwest. In Musch v. Domtar Industries, Inc., 587 F.3d 857 (7th Cir. 2009), the court stated that under wage laws, an employer must “pay their employees a wage for all the ‘work’ they do.” In looking at both Federal and Wisconsin wage laws, the court said that “work” is defined as “physcial or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” In this case, the court found that time employees spent washing up at the end of a shift was not “work” under this definition. The employees worked around hazardous chemicals and showered at work after their shift. The employees apparently did not present evidence that they has known exposures to the chemicals each day, and the employer did pay for this wash time when an employee had a known exposure.
The Seventh Circuit Court of Appeals recently decided the appeal of employees asking to be paid for time spent washing off at the end of a shift, which would sometimes cause overtime. The Seventh Circuit is the federal appellate court covering cases arising in Wisconsin and other states in the Midwest. In Musch v. Domtar Industries, Inc., 587 F.3d 857 (7th Cir. 2009), the court affirmed the trial court’s decision to dismiss the employees’ claim to pay for the time spent washing at the end of a shift, even though these employees worked in an environment where they may have been exposed to hazardous chemicals, though the plaintiffs apparently did not present evidence that they were actually exposed on a regular basis and the employer did pay for time spent washing after a known exposure. The rationale behind the opinion is that washing at the end of the shift, where employees do not have a known exposure to hazardous chemicals, is for the convenience of the employee and not the employer. Since the wash time is not a principal activity of the employees’ work or related to a principal activity, it is not “work” and therefore the employer need not pay the employees for their time spent washing up.
UPS Supply Chain Solutions and its delivery drivers that were classified as independent contractors are close to entering a nationwide class action settlement. UPS classified the drivers as independent contractors, which means the drivers were not paid for overtime, 1.5 times the regular rate of pay for every hour over 40 in a week, and did not receive employment benefits like health insurance. UPS says that it is changing the way it uses independent contractors because of this lawsuit. This lawsuit shows that employers may attempt to avoid paying workers overtime and other benefits of employment by misclassifying someone as an independent contractor while still maintaining control over the worker to such an extent that the classification is unlawful and wrongly denies the worker overtime pay and benefits.
In Wisconsin, employers may only make deductions from an employee’s pay
with written permission from the employee obtained before any loss
occurs. The law is found at Wisconsin Statutes section 103.455. If you
refuse to sign such a document, it is unlawful to terminate you for your
refusal. If you are not responsible for the loss due to negligence,
carelessness or willful and intentional conduct, which it seems is
apparent from your description, then any deduction by the employer is
quite burdensome on employees and probably unlawful. There are penalties
for making unlawful deductions under the law equal to twice the amount
of the deduction. Any written document or agreement in violation of this
law is void, which means it is unenforceable and could not negate the
employer’s liability for such a violation. An employee is also protected
from retaliation for bringing a claim against an employer that violates
In a July 2009 report, Confronting the Gloves-Off Economy, Americas’ Broken Labor Standards and How to Fix Them, published by the UCLA Institute for Research on Labor and Employment, the Center for Economic Policy Research, The Center on Wisconsin Strategy, and the National Employment Law Project, the authors talk about how employees are suffering wage, overtime pay and other workplace violations due to the tough economic times and requirements imposed by employers. The report is based on a larger work, The Gloves-Off Economy: Labor Standards at the Bottom of America’s Labor Market. According to this report, workers are facting an increasingly unfair fight in America for legal wages. The report discusses the problems with the labor laws, how they don’t cover everyone equally, union issues, day laborors, immigrant labor, law-wage job issues, rehabilitation of offenders and jobs, and where the country may need to go with a “living wage.” The report is available at www.nelp.org.