On March 10, 2022, the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) issued guidance on forms of prohibited retaliation under various laws the agency enforces, including the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), immigration visa programs, and other laws and executive orders. The new guidance suggests the agency will focus on retaliation as an enforcement priority in the upcoming year. It will be all the more important for employers to keep an eye out for protected activity and to tread carefully before taking adverse employment action.
The DOL guidance provides a general overview of the major antiretaliation provisions the agency enforces, as well as a number of hypothetical situations illustrating violations. It’s a good primer for those who might be unfamiliar with (or rusty with) the protections, and it’s a good reminder of the several contexts in which retaliation claims could spring up.
For the FLSA, the DOL provides two examples of unlawful retaliation. In the first example, a cook makes a confidential phone call to the WHD with questions about overtime pay. Word spreads among staff about the cook’s call and, when the manager overhears staff talking about the call, she terminates the cook.
The example reminds employers that “protected activity” is broad. The cook wasn’t lodging a complaint against the employer. He was asking questions about overtime more generally. Yet, the DOL considers the cook’s request for information protected activity.
In the second example, a new mother working at a call center expresses breast milk during her lunch breaks. She needs more time to finish pumping before returning to her workstation, and her boss tells her she can’t take any more time beyond her lunch break. The mother asks for another break later in the day to express milk, and the boss sends her home for the rest of the day without pay.
The example highlights a lesser-known FLSA protection. You must provide nursing employees “reasonable break time” each time they need to express breast milk for a nursing child. The protection lasts for one year after the birth of the child. Here, the mother’s request for an additional break to express milk was protected activity, and the manager took adverse employment action against her by sending her home without pay.
For the FMLA, the DOL provides two examples of prohibited retaliation. In the first example, a father takes FMLA leave to care for his hospitalized daughter. The employer has a no-fault attendance policy that allocates points for each absence, regardless of reason, and that calls for disciplinary action after an employee accrues a specific number of points. For each FMLA leave day, the father receives a negative attendance point. The example reminds employers to watch for policies that may seem neutral on their face but treat some employees negatively because they take FMLA leave.
In the second example, a front desk clerk at a hotel periodically suffers from debilitating migraines. After an episode, she takes two days of FMLA leave. When she returns to work, her manager reduces her schedule from 40 hours to 20 hours per week, stating that he needs reliable workers who show up every day.
The example highlights a basic protection the FMLA offers employees. After FMLA leave, you are required to return the employee to the same position or to an equivalent position. Cutting the front desk clerk’s hours in half after she returned from FMLA leave effectively changed her position, violating the FMLA’s antiretaliation provision.
Visa Program Retaliation
As for visa program retaliation, the DOL provides several examples of retaliation under the Immigration and Nationality Act (INA). In one example, an employer sponsored workers on an H-1B visa and deducted a monthly sponsorship fee from each worker’s checks. It required the employees to sign a form stating the deductions were reimbursement for personal loans it made to them. One worker refused to sign, and the manager threatened him with deportation, criminal perjury, and physical violence against his family.
The INA prohibits employers that participate in visa programs from intimidating, threatening, coercing, or otherwise discriminating against employees for engaging in protected activity. Here, the employee engaged in protected activity by refusing to sign a form that would have permitted an otherwise unlawful deduction from his paycheck.
The DOL’s guidance suggests the agency will focus on retaliation as a potential enforcement priority, so we could see more DOL investigations about retaliation in the upcoming year. You should become familiar with the DOL guidance, which will help with issue spotting and identifying protected activity. Before taking adverse action against an employee who has engaged in protected activity, reach out to an attorney who can assess legal risks and advise about best course of action.
Emily Matta is an employment law attorney with the law firm of Foulston Siefkin LLP in Wichita, Kansas. You can reach her at firstname.lastname@example.org.