OMAHA — A Nebraska truck driver’s claim of retaliation was dismissed recently in federal court. The federal court judge did not believe there was sufficient evidence to link the driver’s negative performance reviews, and eventual termination, to his filing of a wage and hours claim against his employer, Werner Enterprises Inc. The driver brought both the class action claim and his retaliation claim under the Fair Labor Standards Act (FLSA) and the Nebraska Wage and Hour Act (NWHA). The judge granted class certification in the FLSA wage claim; however the judge dismissed the NWHA claim along with the retaliation claim.
The Truck Driver’s Claims
Yassine Baouch’s class action wage claim was filed in November of 2012. It claims the company failed to pay minimum wage to its drivers. Werner allegedly used its “per diem” reimbursements program to give the appearance of meeting the minimum wage requirements. “Per diem” pay was given for each day the driver was away from home, and then Werner counted that amount towards its minimum wage obligation, instead of in addition to the minimum wage obligations.
Baouch’s retaliation claim lawsuit was filed in March 2013 about three months after he was terminated. He claims he had never received a negative performance review prior to filing the lawsuit. And he alleges the company started giving negative reviews only after he filed the lawsuit. These negative reviews eventually led Baouch to complain about the negative treatment, which in turn allegedly led to his termination.
Werner countered Baouch’s retaliation claim with evidence that Baouch was employed with the company for less than a year, and completed his student training only two months prior to the wage violation lawsuit. There was almost three weeks between Baouch filing his lawsuit and the start his negative performance reviews. Additionally, the company claims Baouch received negative performance reports for his behavior, tardiness, and work performance from his supervisors and from customers. According to the judge’s decision, courts prefer a shorter timeframe when establishing the “cause and effect” connection between employee action and the employer’s alleged retaliation.
Retaliation for reporting or filing claims of labor law violations is specifically prohibited in each of the state and federal labor laws. However, the court must be able to see a connection between the reporting of a violation and the alleged retaliation or the action will be considered a normal business decision. The court looks at many factors in making its determination, but previous actions of both the employer and the timing between the report and the retaliation are essential to making the connection. In this case there was almost no history of positive or negative reviews and, apparently, the time between filing and negative reviews was too great.
If you believe your employer is not paying proper wages or overtime or believe you have been retaliated against for raising the issue, contact our experienced team of overtime pay lawyers today at (855) 754-2795 to discuss your rights. Or complete the Free Unpaid Overtime Case Review form and our knowledgeable legal team will evaluate your case. If we accept your case, we will represent you under our No Fee Promise. This means there are no legal fees or costs unless you receive a settlement.