A former Target employee, Jason Kellner, has brought a claim against Target in federal district court in Alabama based upon the Fair Labor Standards Act (“FLSA”).  Kellner’s complaint states that he had complained to Target’s Human Resources Department about having to work during what were supposed to be 30-minute unpaid meal breaks.  The complaint then alleges that Target told Kellner they could not pay him for this work because they “couldn’t pay overtime,” and that Target ultimately terminated him in retaliation for raising these concerns.  “Ironically,” the complaint states, Target told Kellner that he was being fired for performing work activities during his meal period without being “clocked in.”  A copy of the complaint can be found here.  If the district court finds all of the factual allegations raised in the complaint to be true, Target’s act of firing Kellner would violate the FLSA, which protects employees who have complained about the wage and hour protections they are afforded under the Act against retaliatory action by employers.

Kellner was paid on an hourly basis.  Target gave him a 30-minute unpaid meal period during each 8.5-hour shift.  In accordance with the FLSA, an unpaid meal period must be at least 30 minutes long and must not be interrupted by work duties, otherwise the employee must be compensated for the time spent on break.  When Kellner worked a night or weekend shift, the salaried manager on duty at the store had always left by the time Kellner needed to take his meal break.  When the manager left, Kellner became responsible for handling tasks and interruptions normally attended to by the manager.  Thus, he was required to leave his walkie-talkie on during these meal breaks, and “constantly” had to attend to issues such as customer complaints, cash register problems, and accidents occurring at the store.  As a result, Kellner could not “enjoy an uninterrupted 30 minute meal period when it came time for him to take his meal break.”

Target has a policy of prohibiting employees from working during meal breaks or the time in which they are otherwise “off the clock,” but according to the plaintiff’s complaint:

 “the time clock at the store is rigged to prevent employees . . . who [have] clocked out for a meal break but [are] then prematurely interrupted to return to work, from clocking in again until the 30-minute meal period has expired.  The plaintiff would go to human resources and ask about correcting his time on a punch-correction form, but the person in the human resources department would always tell him Target ‘couldn’t pay overtime,’ and that he should just try to take another ‘meal period’ later in his shift.  But because no manager was there to cover his duties on the nights and weekends that he worked, the plaintiff could not enjoy an uninterrupted meal break later during his shift either.”

No information is yet available regarding Target’s response, so the extent to which they will contest the facts that Kellner has set forth in his complaint is not known.  If Kellner can convince the district court that he was fired because of his comments regarding overtime, a recent Supreme Court case strongly suggests that his claim would be successful.  This past March, the Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp. that anti-retaliation protection under the FLSA encompasses an oral complaint to an employer.  Kasten was a large victory for employee advocates; in that case the defense had argued—and on this issue the circuits were split—that FLSA protections only apply when a complaint is formally filed with a court or government agency.

If the court accepts Kellner’s characterization of the facts, his retaliation claim is very strong.  The language in Section 216(b) of the Act, which addresses remedies for retaliation claims, is open-ended: “any employer who violates the [anti-retaliation] provisions . . . of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [these provisions].”  Some circuits (such as the Seventh) have interpreted this expansively, awarding punitive damages and holding that employees can even be compensated for the associated emotional distress, while other circuits (such as the Eleventh) have more narrowly granted only the lost wages and/or reinstatement.  Alabama is part of the Eleventh Circuit.

The plaintiff also alleges that he is entitled to compensation in the form of back wages for the uncompensated meal breaks that were interrupted.  The FLSA provides almost all non-salaried employees certain wage and hour protections, and Kellner appears to qualify for them (certain executive, administrative, and professional employees are exempted from these protections, but Kellner probably does not fall within any of these exceptions).  Twenty-two states have laws mandating that meal breaks be given to employees who work six hour shifts or longer, but Alabama is not one of them.  Thus, Target was not required by law to give any meal break to Kellner. However, the FLSA mandates that if an employer gives employees an unpaid break—which Target did here—that break must be at least thirty minutes long; a shorter break must be paid.

This is part of a more general and very prevalent problem for employers of hourly rate employees: they struggle to make sure that their employees do not work more hours than scheduled.  Employers must be actively monitor and record their employees’ hours in order to avoid paying these employees overtime, and more generally in order to comply with state and federal wage and hour laws.  If an employee attends to a work-related issue for just one minute during his or her thirty minute meal break, and thus the break ends up being twenty-nine minutes long, that employee must be compensated for all of the time: the entire twenty-nine minutes of break as well as the one minute of work.  When this happens, it is doubly bad for employers: not only has the employer often not budgeted to pay the employee for an extra thirty minutes, but for employees already working full-time, those thirty minutes must be paid at overtime rates.

A twist to the FLSA is that regardless of whether Kellner and Target decide that they want to settle, a court must now be involved in resolving the dispute.  For all actions brought by employees under the FLSA, any settlement must be reviewed by a court for fairness before being approved.  The parties involved must also notify the Secretary of Labor, who under the FLSA has the right to bring an independent lawsuit for the same offense.

Finally, this complaint may add controversy to Target’s very public fight to prevent unionization that has developed over the past year.  Target has aggressively campaigned against unionization, arguing that union representation would be an unnecessary and counterproductive intrusion into Target’s relationship with its employees.  Target maintains that their relationship with employees is very strong and that they provide an outstanding workplace environment.  Kellner’s complaint provides evidence to the contrary, and such attention could help motivate Target employees who have experienced similar treatment by the company to come forward and assert their statutory right to receive overtime.  Such actions would also provide momentum to the union supporters’ assertions that individual employees at Target would be better off with union support, to ensure that their wage and hour rights are being protected in the strongest possible manner.