Employee has routine gripe about timekeeping? That’s not necessarily protected activity

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in Firing,Human Resources

Employees who question your timekeeping process may be setting you up for an FLSA lawsuit. How you respond may make the difference between winning and losing.

If you promptly fix what turns out to have been an innocent mistake, the court probably won’t consider the original complaint protected activity. That’s good, especially if you ever have to discipline the employee. Reason: She won’t be able to call the discipline retaliation.

Recent case: Leslie was an attorney for a small law firm. One day, she gathered up her files, preparing to leave about 4:45 p.m. However, she didn’t leave until 10 minutes later, when she noticed that the office manager had already clocked her out at 4:45. She complained.

The office manager said she clocked Leslie out because it looked like she wasn’t working. Nevertheless, she said she would change the time sheet to reflect Leslie’s claimed departure time.

Later that evening, Leslie was apparently still upset. She called back and got into a heated argument about other employees taking too many breaks. The firm fired her because of the argument.

Leslie sued, alleging that her phone call was protected activity and her discharge amounted to retaliation.

The court didn’t buy it. It called the discussion about the time clock a routine matter that was quickly resolved. The court refused to allow a retaliation lawsuit to be based on such a flimsy complaint. (Montgomery v. Havner, No. 12-1977, 8th Cir., 2012)

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