Kansas City Employment Lawyer Blog

Jim Garner, Kansas Labor Secretary, spoke to a group in Wichita this past weekend regarding Kansas wage theft and wages that were wrongfully withheld from Kansas workers. Along with Garner, there were several federal and state labor officials as well as a significant number of Kansas state legislators participating in the Summit.

The crux of the meeting was that the poor economy has led to an increase in employers improperly paying Kansas workers. This practice is typically called "wage theft" and is covered under the Fair Labor Standards Act (FLSA), as well as other Kansas specific provisions designed to protect workers.

Other topics of the meeting were the number of employers who are treating workers as independent contractors when they should in fact be treated as employees. This is another way that employers are trying to save money in the difficult economy. However, if a worker is classified as an independent contractor they are denied unemployment benefits, workers compensation, and other benefits that employees typically receive, which independent contractors do not. This is an unfair practice both to the workers who are not receiving these benefits as well as to businesses that are properly classifying and paying workers.

On October 13, 2010, the United States Supreme Court heard oral arguments regarding whether informal, oral complaints are sufficient to invoke the protections of the Fair Labor Standards Act (FLSA) anti-retaliation provisions. The underlying case, Kasten v. Saint-Gobain Performance Plastics, involved an issue where the employee, Kevin Kasten, alleged he had been fired by his employer as a result of several verbal complaints he had made regarding the illegal location of time clocks in his factory.

The Defendant argued that because Kasten had not filed a written complaint with the government, he had not invoked the protections of the FLSA's anti-retaliation provisions. According to the Defendant's arguments, in order to be protected from retaliation, an employee must do more than make a complaint to the company - he or she must file a complaint with the government, either the Department of Labor, or through the court mechanism.

Courts have been split on the issue about whether informal complaints not made to the government invoke the anti-retaliation provisions of the FLSA. For example, the 10th Circuit (where the District of Kansas is located) has held that informal complaints to an employer about violations of the FLSA are sufficient to give protections to employees, while the 8th Circuit (where the Districts of Missouri are located) has held that such informal complaints are insufficient to give protection to employees. In other words, until now, an employee may have different rights regarding complaints about wage violations, based on which side of the state line they work.