/>iOn March 10, 2022, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) published a Field Assistance Bulletin (FAB) entitled “Protecting Workers from Retaliation.”
The FAB provides guidance on worker anti-retaliation protections available under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), as well as certain visa programs under the Immigration and Nationality Act (INA).
Other WHD-enforced federal labor laws covered by the FAB include:
-
The United States-Mexico-Canada Agreement (USMCA) – requiring any facility involved in the production or assembly of certain vehicles pay their workers at least $16.00 per hour;
-
Executive Orders 13706, 13658, and 14026 – governing paid sick leave and minimum wages for certain federal contractors;
-
The Consumer Credit Protection Act (CCPA) – protecting employees from being discharged because their wages have been garnished for any one debt and limiting the amount of an employee’s earnings that may be garnished in any week; and
-
The Employee Polygraph Protection Act (EPPA) – prohibits most private sector employers from using lie detector tests in pre-employment screening or during the course of employment, unless an exception applies.
Here are some of the key takeaways for private-sector employers:
What Constitutes Prohibited Retaliation?
Although each law contains its own slightly different statutory definition, employers should take note of the DOL’s review of the general definition of prohibited retaliation, which occurs when “an employer [or their manager, supervisor, administrator or other agent], takes an adverse action against an employee because they engaged in a protected activity.”
-
Adverse Action: An adverse action is any action that could dissuade an employee from engaging in protected activity, from overt disciplinary actions to more subtle actions and everything in between. A (non-exhaustive) list of examples of adverse action includes:
Adverse Actions (Overt) |
Adverse Actions (Subtle) |
|
Termination or threatening termination. |
Reduction in work hours. |
|
Threatening deportation. |
Counting FMLA leave under a no-fault attendance policy. |
|
Forcing employee to return back wages rightfully due to employee (“kickbacks”). |
Exclusion from regularly scheduled meetings. |
-
Protected Activity: Protected activities may involve concerns raised or requests made internally or externally by an employee. A (non-exhaustive) list of examples of protected activities includes:
Protected Activities (External) |
Protected Activities (Internal) |
|
Filing a complaint with WHD, even if the employee mistakenly believes that their rights have been violated. |
Making a complaint to a manager or employer, even if the employee mistakenly believes that their rights have been violated. |
|
Cooperating with a WHD investigation. |
Requesting payment of wages. |
|
Consulting with WHD staff. |
Refusing to return back wages to the employer. |
|
Testifying at trial. |
Exercising or attempting to exercise employee rights, such as requesting certain types of leave. |
-
Causal Connection: Prohibited retaliation occurs when an employer takes an adverse action based upon or because of the employer’s belief that the employee engaged in protected activity – e., there must be a causal connection between the protected activity and the adverse action. This element is met even if the employer’s belief or protected activity is actually mistaken.
Specific Examples of Prohibited Retaliation
The FAB also provides specific examples of prohibited retaliation under the FLSA, the FMLA, and other WHD-enforced anti-retaliation provisions. These scenarios highlight how even subtle forms of adverse employment actions can trigger a retaliation claim or a WHD investigation.
FLSA Examples |
|
Example 1Nelson calls WHD to ask about overtime pay. When the employer overhears other staff members discussing Nelson’s call, the employer fires Nelson. |
Example 2Aisha, a new mother, uses her lunch break to express breast milk. When Aisha’s boss complains that she is taking time in excess of her allotted lunch break time for “personal stuff,” Aisha asks if she has a right to an afternoon pump break instead. In response, Aisha is sent home without pay for the rest of her shift. |
Discussion |
|
|
|
FMLA Examples |
|
Example 1
|
Example 2
|
Discussion |
|
|
|
Examples Under Other WHD-Enforced Laws |
|
EPPADenying applicant’s employment because the applicant declined to take a pre-employment lie detector test. |
CCPAReassigning employee to a lower paying position after the employer learns of a court order to garnish a portion of employee’s earnings. |
MSPATerminating all 15 migrant agricultural workers that employer houses in substandard housing after one worker files a complaint with WHD. |
INAThreatening H-1B worker with deportation for refusing to sign form mischaracterizing employer’s pay deductions. |
USMCAAttempting to get employee fired for truthfully disclosing to a WHD investigator that her employer, a vehicle assembly plant, pays less than USMCA-required $16.00/hr. |
Federal Contractor EOsBlocking the imminent promotion of a supervisor who works on a federal contract because he supervisor asked about the availability of paid sick leave. |
These examples highlight the various employer actions that can trigger liability under WHD-enforced anti-retaliation laws. Compare Nelson’s termination for asking the WHD about overtime with Jamie’s receipt of negative attendance points pursuant to a seemingly neutral no-fault attendance policy. The former is a classic overt disciplinary action, whereas the latter constitutes a more subtle form of adverse action. Nevertheless, because both actions could dissuade an employee from engaging in protected activity, they are both prohibited retaliation, per WHD guidance.
Enforcement, Remedies, and Sanctions
The guidance concludes with an emphasis on the WHD’s commitment to vigorously investigating and remedying two types of adverse actions: (1) constructive discharge, and (2) immigration-based threats, including punitive actions using the immigration system or any other negative action based on an employee’s immigration status. The WHD also details its collaborative interagency relationships with federal and state partners, including OSHA, the EEOC, and the NLRB, to coordinate worker protection from employer retaliation.
Finally, the guidance notes that while each statute provides for varying remedies for violations, the WHD will consider all remedies and sanctions available to protect workers, even including punitive damages where appropriate.
Ultimately, employers should know that the definition of retaliation – and specifically, what constitutes protected activity and adverse action – are broad, and prohibited by multiple federal statutes.
Scott Held contributed to this report.
