On 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) – prohibiting 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.
Nelson calls WHD to ask about overtime pay. When the employer overhears other staff members discussing Nelson’s call, the employer fires Nelson.
Aisha, 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.
|· Terminating Nelson for contacting (or suspecting Nelson of contacting) the WHD and dismissing Aisha for inquiring into her rights as a nursing mother constitute prohibited retaliation, potentially triggering a WHD investigation.
· Aisha may be entitled to back pay and liquidated damages, and her employer would have to comply with the FLSA’s mandatory time and space requirements for nursing mothers.
· Nelson may have a private cause of action and may be entitled to reinstatement, lost wages and liquidated damages.
· Jamie uses three days of approved FMLA leave to care for his daughter while she recovers from surgery.
· Jamie then receives three negative attendance points upon his return to work, per his employer’s no-fault attendance policy, which allocates negative attendance points for each day an employee is absent, irrespective of the reason for the absence.
· Employees who accrue a threshold number of points are automatically disciplined.
· Deborah uses four days of approved FMLA leave over a two-month period after suffering from debilitating migraines.
· The following month, Deborah has another episode and uses FMLA leave for an additional two days.
· Upon her return to work, Deborah’s manager tells her that because the company needs workers who will show up every day, Deborah’s work schedule is being reduced from 40 hours to 20.
|· The employers in both examples engaged in prohibited retaliation, potentially triggering a WHD investigation.
· Since FMLA leave may not be counted under a no-fault attendance policy, the negative attendance points for the days Jamie took FMLA leave would be removed from his employment record.
· Deborah would be entitled to return to her previous 40-hour schedule, receive an additional 20 hours per week in wages for the period she was forced to work the reduced schedule, and receive an amount equivalent to her lost wages in liquidated damages.
|Examples Under Other WHD-Enforced Laws|
Denying applicant’s employment because the applicant declined to take a pre-employment lie detector test.
Reassigning employee to a lower paying position after the employer learns of a court order to garnish a portion of employee’s earnings.
Terminating all 15 migrant agricultural workers that employer houses in substandard housing after one worker files a complaint with WHD.
Threatening H-1B worker with deportation for refusing to sign form mischaracterizing employer’s pay deductions.
Attempting 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 EOs
Blocking 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.
As always, please feel free to reach out to any member of our team if you have questions about the DOL’s new guidance.