Under the Fair Labor Standards Act, employers are prohibited from retaliating against an employee who complains about wage payment issues. Some employers adopt policies requiring that all complaints be submitted in writing, often for the purpose of specifying the employee's exact grievances.
The U.S. Supreme Court concluded that the anti-retaliation provisions of the FLSA are triggered when an employee makes either an oral or written complaint to his or her employer.
In Kasten v. Saint-Gobain Performance Plastics Corp., the plaintiff told his supervisor that he was considering a lawsuit against the company because its placement of the time clock did not allow payment of time spent donning and doffing protective clothing. He alleged that he was terminated as a result of the oral complaint.
The Seventh Circuit dismissed the retaliation claim, citing language in the FLSA that ties its anti-retaliation protections to employees who "file" complaints with their employers. The defendant contended that this language means that in order to be protected from retaliation, the employee must make a more formal complaint to the employer.
The Supreme Court rejected this reasoning, reversing the lower court's decision. The 6-2 majority concluded that as long as the complaint is sufficiently clear and detailed enough for the employer to understand, it may be protected under the FLSA. Nothing in the statute requires that the complaint be submitted in writing.
This decision continues a string of Court decisions that expansively read anti-retaliation provisions of federal employment laws. The Supreme Court has repeatedly rejected narrow readings of these laws in favor of protections for employees who exercise their legal rights.
For procedural reasons, the Court declined to consider the defendant's contentions that the FLSA's retaliation provisions only cover employees who have made a complaint to a governmental agency. For now, employers should understand that any form of complaint may trigger these protections, even if the employer requires or prefers that they be submitted in writing.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 612, March 25, 2011
Wednesday, July 20, 2011
North Carolina and South Carolina Immigration Alert: E-Verify Mandatory for Certain Employers
Joining the recent wave of states introducing stricter immigration legislation in the wake of the United States Supreme Court's Whiting decision in May, both North Carolina and South Carolina will require employers to register and participate in the federal government's electronic verification system, known as "E-Verify". E-Verify is otherwise a voluntary federal system that supplements the paper I-9 employment verification system.
North Carolina: New E-Verify Act
Governor Perdue signed a bill requiring certain employers to verify the employment eligibility of all new hires through E-Verify. The North Carolina law requires all counties and municipalities to start using E-Verify effective October 1, 2011. (NC state agencies are already required to use E-Verify). All other employers with over 24 employees in North Carolina must start using E-Verify according to the following schedule: October 1, 2012 for employers with 500 or more employees; January 1, 2013 for employers with 100 to 499 employees; and July 1, 2013 for employers with 25 to 99employees. The law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.
The new law allows any person with a good faith belief that an employer has violated the law to report complaints to the Commissioner of Labor. The Commissioner must then investigate the complaint to determine whether an employer has violated the law and shall hold a hearing to determine if a violation has occurred. If in the course of the investigation the Commissioner concludes that there is a reasonable likelihood that an employee is an unauthorized alien, the Commissioner must notify U.S. Immigration and Customs Enforcement and local law enforcement agencies.
Civil penalties may be assessed upon the issuance of an order as follows: (a) for a first violation, an employer must file an affidavit within three business days after the order that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify; (b) for a second violation, the employer must file the affidavit and pay a civil penalty of $1,000, regardless of the number of missing employee verifications; and (c) for a third or subsequent violation, the employer must file the affidavit and pay a civil penalty of $2,000 for each required employee verification missing. In any event, failure to file the required affidavit for any violation also results in a civil penalty of $10,000.
South Carolina: SC Illegal Immigration Reform Act Update
On Monday, Governor Haley signed a bill into law amending several sections of the South Carolina Illegal Immigration Reform Act of 2008 (SCIIRA). The most important amendments mandate that all South Carolina employers that are required to complete and maintain federal employment eligibility verification forms or documents, use E-Verify. South Carolina employers have until January 1, 2012 to comply with the South Carolina law.
The current version of SCIIRA imputed a state employment license to South Carolina employers as of July 1, 2009, and has required compliance by all South Carolina employers since July 1, 2010. SCIIRA allows employers to choose between enrolling and verifying their work force through the federal E-Verify system or employ only workers who (a) have a South Carolina driver's license or ID card, (b) have a driver's license or ID card issued by another state whose license requirements are as strict as those in South Carolina, or (c) are eligible to obtain a South Carolina driver's license or ID card. Penalties for failure to comply with verification procedures include civil penalties of not less than $100 and not more than $1000 for each violation, and include the suspension or revocation of an employer's employment license for "knowingly or intentionally employing an unauthorized alien".
SCIIRA has been enforced by investigators with SCLLR who have been notifying and conducting audits of South Carolina employers since the Summer of 2009. Investigations ceased earlier this year in light of questions as to the enforceability of South Carolina's statute. With the passage of the new law, it is likely that investigations will continue under the parameters of the new law.
In addition to deleting the alternative means for compliance and mandating the use of E-Verify, the law removes civil monetary fines and implements a system of probation, suspension and revocation with respect to the imputed employment license. Private employers that are general contractors are also required to maintain contact phone numbers for all subcontractors working on the project. After a violation is determined, SCLLR will verify the work authorization status of the employees, notify the employer of the results and notify federal, state and local law enforcement officials of any suspected unauthorized aliens employed by the employer. Each failure to verify the immigration status of a new employee is considered a separate violation of the law.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 626, July 1, 2011
North Carolina: New E-Verify Act
Governor Perdue signed a bill requiring certain employers to verify the employment eligibility of all new hires through E-Verify. The North Carolina law requires all counties and municipalities to start using E-Verify effective October 1, 2011. (NC state agencies are already required to use E-Verify). All other employers with over 24 employees in North Carolina must start using E-Verify according to the following schedule: October 1, 2012 for employers with 500 or more employees; January 1, 2013 for employers with 100 to 499 employees; and July 1, 2013 for employers with 25 to 99employees. The law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.
The new law allows any person with a good faith belief that an employer has violated the law to report complaints to the Commissioner of Labor. The Commissioner must then investigate the complaint to determine whether an employer has violated the law and shall hold a hearing to determine if a violation has occurred. If in the course of the investigation the Commissioner concludes that there is a reasonable likelihood that an employee is an unauthorized alien, the Commissioner must notify U.S. Immigration and Customs Enforcement and local law enforcement agencies.
Civil penalties may be assessed upon the issuance of an order as follows: (a) for a first violation, an employer must file an affidavit within three business days after the order that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify; (b) for a second violation, the employer must file the affidavit and pay a civil penalty of $1,000, regardless of the number of missing employee verifications; and (c) for a third or subsequent violation, the employer must file the affidavit and pay a civil penalty of $2,000 for each required employee verification missing. In any event, failure to file the required affidavit for any violation also results in a civil penalty of $10,000.
South Carolina: SC Illegal Immigration Reform Act Update
On Monday, Governor Haley signed a bill into law amending several sections of the South Carolina Illegal Immigration Reform Act of 2008 (SCIIRA). The most important amendments mandate that all South Carolina employers that are required to complete and maintain federal employment eligibility verification forms or documents, use E-Verify. South Carolina employers have until January 1, 2012 to comply with the South Carolina law.
The current version of SCIIRA imputed a state employment license to South Carolina employers as of July 1, 2009, and has required compliance by all South Carolina employers since July 1, 2010. SCIIRA allows employers to choose between enrolling and verifying their work force through the federal E-Verify system or employ only workers who (a) have a South Carolina driver's license or ID card, (b) have a driver's license or ID card issued by another state whose license requirements are as strict as those in South Carolina, or (c) are eligible to obtain a South Carolina driver's license or ID card. Penalties for failure to comply with verification procedures include civil penalties of not less than $100 and not more than $1000 for each violation, and include the suspension or revocation of an employer's employment license for "knowingly or intentionally employing an unauthorized alien".
SCIIRA has been enforced by investigators with SCLLR who have been notifying and conducting audits of South Carolina employers since the Summer of 2009. Investigations ceased earlier this year in light of questions as to the enforceability of South Carolina's statute. With the passage of the new law, it is likely that investigations will continue under the parameters of the new law.
In addition to deleting the alternative means for compliance and mandating the use of E-Verify, the law removes civil monetary fines and implements a system of probation, suspension and revocation with respect to the imputed employment license. Private employers that are general contractors are also required to maintain contact phone numbers for all subcontractors working on the project. After a violation is determined, SCLLR will verify the work authorization status of the employees, notify the employer of the results and notify federal, state and local law enforcement officials of any suspected unauthorized aliens employed by the employer. Each failure to verify the immigration status of a new employee is considered a separate violation of the law.
Posted by The Whitford Group, 704 298-2115
ParkerPoe, EmployNews, Issue 626, July 1, 2011
New Wage and Hour “App” from the Department of Labor (DOL)
The Department of Labor (DOL) - which, by the way, estimates that 70 percent of employers are not in compliance with the Fair Labor Standards Act (FLSA) - has unveiled a free smartphone application that allows workers to track their hours so they can figure out exactly how much compensation they're owed for time worked.
Yes, there's an app for that!
Plus, the app includes a prominent "contact us" icon, making the DOL just a quick finger-tap away for any employee who believes he or she is being underpaid. Secretary of Labor Hilda Solis notes that the technology could prove "invaluable" during wage/hour investigations that allege inaccurate employer time records.
Do you need a wage and hour audit? Don't spend money paying penalties and fines. Use your money wisely, protect your company.
The Whitford Group
704 298-2115
BLR, July 2011
Yes, there's an app for that!
Plus, the app includes a prominent "contact us" icon, making the DOL just a quick finger-tap away for any employee who believes he or she is being underpaid. Secretary of Labor Hilda Solis notes that the technology could prove "invaluable" during wage/hour investigations that allege inaccurate employer time records.
Do you need a wage and hour audit? Don't spend money paying penalties and fines. Use your money wisely, protect your company.
The Whitford Group
704 298-2115
BLR, July 2011
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