Posts tagged with "review"


The United States Supreme Court had overturned long-standing law in the Federal Districts of Connecticut and New York with respect to employee claims of retaliation for registering a complaint with an employer under the Fair Labor Standards Act (“Act”). In this case note, we will tell you how the law changed, and how employers should adopt changes in policy and procedure to protect themselves from a new and difficult-to-defend source of employment-related liability.

Fair Labor Standards Act


 The Fair Labor Standards Act was passed in 1938 and subsequently amended by the Equal Pay Act of 1963. The Act sets forth employment rules concerning minimum wages, maximum hours, and overtime pay. The Act contains an anti-retaliation provision prohibiting the discharge of or discrimination against any employee who has “filed any complaint” related to the Act. In 1993, the United States Court of Appeals for the Second Circuit (whose jurisdiction includes Connecticut and New York) decided
Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993). There the Court held that “[t]he plain language of this [anti-retaliation] provision [of the Act] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Id. at 55. Such was the settled law within this Circuit until March 22, 2011, when the Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. LEXIS 2417 (2011).
Kasten v. Genesee Hospital

Kasten, the Supreme Court conducted a thorough exegesis of the phrase “filed any complaint” in the context of whether the statutory language included oral, as well as written complaints, and whether oral complaints thereby constituted protected conduct under the Act’s anti-retaliation provision. The case involved an employee who complained orally to his supervisor about the physical placement of time clocks so as to deprive workers of compensable time. The employee was fired soon after his complaint. The Supreme Court found the text of the statute to be inconclusive as to its meaning and harkened back to the words of Franklin D. Roosevelt and pre-World War II census data to further divine the Act’s legislative intent. The Supreme Court ultimately concluded: “[t]o fall within the scope of the anti retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.” Kasten at * 23. Left unanswered by the Court, however, is the actual level of clarity and detail required to elevate some employee “letting off steam” (e.g., to a supervisor at a Friday night, after-work happy hour) to the protected activity of “filing of a complaint.” Turning the already murky waters opaque, the Court offered this guidance: “[t]he phrase ‘filed any complaint’ contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns.”
Dangers to Employers
Lurking behind the Court’s holding is the spectre of an employee dismissed for cause suddenly recalling his prior oral complaint to his supervisor about violations of the Act, thus playing his anti-retaliation “get out of jail free” card. While the Supreme Court paid lip service to the requirement that an employer be given “fair notice” (albeit orally) of a claimed violation of the Act, it “[left] it to the lower courts to decide whether Kasten [the plaintiff-employee] will be able to satisfy the Act’s notice requirement.”
Id. at * 27. As of this point, there is no such lower court advice to depend upon, but there are steps an employer can now take to reduce its exposure to a fabricated, after-the-fact claim of employer retaliation.
Employer Protections
Employee Handbooks or Company Policies and Procedures Manuals should be amended to require that all employee complaints to supervisors or management be written (even if anonymous) on a form prescribed by the employer and delivered to a specific location (e.g., suggestion box) or a designated member of management. A sample form should be appended to the Handbook or Manual as an Exhibit, and a supply of forms should be made readily (but discretely) available to employees. The Company needs to establish a usual, customary, and accepted practice of addressing only written employee complaints, irrespective of their subject, seriousness, or source. The complaint forms should be numerically serialized upon receipt and logged in so that there is no question as to whether or when it was received. In this way, the company can argue that the absence of such a written complaint form raises a rebuttable presumption that no such complaint was ever made. It will thus deprive a discharged employee of the opportunity after he is fired to conjure up a “stealth” retaliation claim based upon a “phantom” oral complaint.
In the meantime, supervisors and management should be made aware that seemingly innocuous oral complaints from employees about wages and hours are sufficient to trigger the anti-retaliation provision of the Act and should be investigated and acted upon.
Contact Us
The Attorneys at Maya Murphy, P.C. regularly draft or review Employee Handbooks and advise employers on the full spectrum of employment law and employer-employee relations. For additional information, call at (203) 221-3100 or contact

Keywords: “Act”, (203) 221-3100, advise, amended, anti-retaliation, anti-retaliation provision, changes in policy and procedure, Company Policies and Procedures Manuals, compensable time, complaint, complaint to supervisor, Connecticut, Court, customary, discharge, discharged employee, discrimination, draft, employee, employee claims, retaliation, employee complaints to supervisors or management, employee dismissed for cause, employee filed any complaint, Employee Handbooks, employees, employer, employer-employee relations, employers, employment law, employment-related liability, Equal Pay Act, Fair Labor Standards Act, terminated, fired, formal complaints, grievance, Handbook or Manual as an Exhibit, instituting a proceeding, investigated, law, legislative intent, maximum hours, Maya Murphy, minimum pay, New York, testifying, oral complaints, overrtime pay, P.C., protected activity, protected conduct, reasonable employer, rebuttable presumption, registering complaint, retaliation, retaliation claim, review, rights, supervisor, supervisors and management, Supreme Court, The Fair Labor Standards Act, violation, wages and hours, worker, written complaint, attorney, attorneys, Westport, Darien, Stamford, Bridgeport, Weston, Easton, Norwalk, Fairfield 

For Remorseless Drunk Driver, Stiff Sentence Was Neither Disproportionate Nor Inappropriate

In a recent criminal law matter, the Sentence Review Division of the Superior Court assessed whether a defendant’s sentence following a DUI-related trial was proper.

This case arose from an incident that occurred on July 27, 1997. The defendant was driving under the influence when he struck two teenage pedestrians. One died at the scene and the other the next day at Hartford Hospital. The defendant did not stop to help them; rather, he drove until he got his car hit a tree, after which he fled. Soon after, police found the defendant, who admitted that he hit what he believed was a dog. A subsequent chemical alcohol test revealed the defendant’s blood alcohol content at 0.163, over twice the legal limit, as well as the presence of cannabis.

The defendant was charged with and convicted of two counts of second-degree manslaughter with a motor vehicle, offense committed while on release, and operating a motor vehicle while under the influence (OMVUI) of alcohol and/or drugs. At the sentencing hearing, the court noted that “the impact of the defendant’s actions was clearly significant,” noting the very young age of the victims. The defendant did not exhibit remorse for his conduct, and he tried blaming the victims because at the time of the accident, they were wearing dark clothing. The court considered the defendant’s background and upbringing, but was particularly disturbed by the following statement from his pre-sentence investigation report: “I’ve been driving like this for 35 years… I can drink and drive… I am a good drunk driver.”

The defendant was subsequently sentenced to thirty-five years execution suspended after twenty-six and a half years, with five years probation. He sought review of his sentence, arguing that it was “disproportionate” to the sentences imposed on others who were similarly situated.

The scope of review by the Sentencing Review Division is confined to the parameters of Connecticut Practice Book § 43-23 et seq. A sentence may be modified upon a showing that it was “inappropriate or disproportionate” in light of various factors, such as the nature of the offense and protection of public interests. In this case, the Court stated that modification was not warranted based on the unique facts of this case. It wrote how it appeared “the sentencing court was unable to identify anything that it could use as mitigation to merit a lesser sentence.” Therefore, the sentence was affirmed.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at

Written by Lindsay E. Raber, Esq.

What Rights Do I Have under the Family Educational Rights and Privacy Act (FERPA) in Connecticut?

Under the Federal Educational Rights and Privacy Act, parents have the right to review all education records that relate to their child.  School districts or other education institutions must give parents access to these records within 45 days of their request.  Further, under Connecticut state law, a parent making such a request is entitled to “prompt” access to the records.  Under both federal and state law, non-custodial parents have the right to access student records as well.  This access is provided unless the district has evidence that there is a court order, state law, or other legal requirement related to custody that specifically revokes this right.

If you have any questions related to education law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at