On March 10, 2022, the U.S. Department of Labor (DOL) and its Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2022-02 (FAB). FAB focused on retaliation against employees who assert rights under a broad array of federal laws, including the FLSA, FMLA, the Migrant and Seasonal Workers, various work Visa programs (such as H-1B), and the Consumer Credit Protection Act.
The WHD, among other things, is charged with investigating employee and former employee complaints and DOL-directed investigation programs to ensure compliance with the federal laws under the jurisdiction of its agency. Many employers may be familiar with the WHD’s mission to investigate complaints about the failure to pay statutory overtime, misclassification as an independent contractor, or failure to provide FMLA leave, and there have been several recent DOL announcements involving large settlements of failure to pay overtime and independent contractor misclassification complaints. The DOL’s FAB serves to remind employers that a significant part of WHD’s mission is the protection of workers who assert their rights and that the DOL will pursue all available remedies whenever it determines that retaliation has occurred.
Retaliation may take many different forms, whether readily apparent or more subtle, but at its foundation, it’s an adverse action that discourages employees from raising a concern about a violation of the law or engaging in a protected activity in furtherance of the law’s protections. For example, filing a complaint with the WHD, cooperating with an investigation, or raising to the employer an issue with its pay practices, or asserting their worker rights. There are a number of ways in which adverse action may arise other than through termination of employment, including:
- Reducing pay or changing an employee’s work schedule, including transfer to another shift;
- Denial of paid vacation or sick time;
- Constructive discharge by making the employee’s working conditions so intolerable (which could include things like not timely providing work assistance to the employee, ceasing communications, not including the employee in meetings, or bullying) that a reasonable person in the employee’s situation would feel compelled to quit;
- Threat of job loss or other change in the employee’s circumstances;
- Demotion; or
- Threat of deportation for an employee working in the U.S. under a Visa program.
The FAB provided several examples of employer retaliation against workers under the various laws enforced by the DOL, which provide guidance:
- Employee calls WHD about overtime. An employee who is a cook at a restaurant contacts the WHD confidentially to inquire about overtime pay, tells a coworker what he learned, and his coworker tells someone on the wait staff. The manager overhears two wait staff talking about the call made by the employee and fires the employee. Terminating the employee’s employment because he contacted the WHD (or was suspected of doing so) is prohibited.
- Employee asks for additional break time to express breast milk. An employee who is a new mother works for a call center and uses her lunch break to pump breast milk. She needs more time to finish pumping before she can return calls at her workstation. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When she asks if she has a right to take another break for pumping later in the day, her boss sends her home without pay for the rest of her shift. In this situation, the employee was sent home for asking to exercise a right under the FLSA.
- Employee returns to work from Intermittent FMLA. An employee used FMLA leave from her job as a front desk clerk at a hotel when she suffered migraine headaches that made her unable to come into work. She was approved for intermittent FMLA leave as episodes occurred. She used intermittent FMLA for three days in January and one day in February. In April, she had another episode, and used two FMLA leave days. When she returned to work, her new manager reduced her schedule from 40 hours to 20 hours a week, saying they needed workers who would show up every day.
- FMLA and no-fault attendance policies. An employee takes approved FMLA leave to care for his seven-year-old daughter because she is in the hospital overnight recovering from surgery. He returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no-fault attendance plan, employees are allocated points for every absence from work, no matter the reason for the absence, and are subject to termination upon reaching a total of 10 points. The FAB emphasizes that assigning attendance points to FMLA-protected leave days is prohibited because under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies.
The WHD may seek all remedies available under whichever statute (FLSA, FMLA, etc.) subject to the retaliation complaint. Those remedies may include:
- Reinstatement or return the employee to a prior position (in the last example above, that would include returning the worker to her 40 hour per week schedule);
- Removal of any disciplinary action in the employee’s personnel record, including “letters of reprimand” ;
- Payment of full back wages to the employee, and an equal amount of back wages as liquidated damages;
- In certain cases, payment of additional “compensatory” damages, including for emotional distress or punitive damages;
- Payment of attorney fees and court costs; or
- Entry of injunction relief which includes the prohibiting future retaliation against any employees and engaging in manager training.
Lastly, the FAB notes that workers who experience retaliation may not be aware of their rights or may suspect that the adverse action they have suffered was caused by an activity, status, or characteristic that is protected under a law enforced by another federal or state agency. For that reason, the DOL also leverages established relationships with federal and state agencies to protect workers against retaliation in violation of other federal or state statutes, including the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Occupational Safety and Health Administration. Employers need to be cognizant that a retaliation complaint made with the DOL might also lead to the DOL referring the employee to other agencies if warranted by the information from the employee’s complaint.
The consequences of a retaliation complaint often create greater legal and economic exposure than the underlying complaint made about an overtime practice or denial of FMLA leave. Employers need to ensure that they do not engage in retaliatory conduct whenever an employee complains about a workplace policy or practice.
About the Author
David R. Deromedi (Member, Detroit) is a member of the firm’s labor and employment department and regularly advises clients on employer/contractor issues. For more information, you can review his bio here, or you may contact David directly at 313-223-3048 or email him at DDeromedi@dickinsonwright.com.