On March 10, 2022, the U.S. Department of Labor (“DOL”), Wage and Hour Division issued guidance on forms of prohibited retaliation under various laws the DOL enforces, including the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), immigration visa programs, and other laws and executive orders. The DOL guidance provides a general overview of the major anti-retaliation 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) these protections, and it’s a good reminder of the several contexts in which retaliation claims could spring up.
Fair Labor Standards Act
For the FLSA, the guidance provides two examples of unlawful retaliation. In the first example, a cook makes a confidential phone call to the Wage and Hour Division 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. This example reminds employers that “protected activity” is broad. The cook was not lodging a complaint against his employer about overtime pay. He was asking questions about overtime more generally. Yet, the DOL considers the cook’s request for information about overtime 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. This example highlights a lesser-known FLSA protection — employers must provide nursing employees “reasonable break time” each time the employee needs to express breast milk for a nursing child. This 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.
Family Medical Leave Act
For the FMLA, the guidance 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 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. This example reminds employers to watch for policies that may seem neutral on their face, but treat someone negatively because they take FMLA leave.
In the second example, a front desk clerk at a hotel periodically suffers from debilitating migraines. After a recent episode, she took two days of FMLA leave. When she returned to work, her manager reduced her schedule from 40 hours to 20 hours per week, stating that he needed reliable workers who would show up every day. This example highlights a basic protection the FMLA offers employees — after FMLA leave, the employer is 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 anti-retaliation provision.
Visa Program Retaliation
As for visa program retaliation, the guidance 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. The employer required these employees to sign a form stating that the deductions were reimbursement for personal loans the employer 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 who 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.
Employers who participate in visa programs should carefully watch for protected activity and tread carefully before taking adverse action. Violations of the INA’s anti-retaliation provisions carry stiff penalties, such as debarment from the visa program for two years and civil money penalties. The DOL may also refer the case to the U.S. Department of Justice.
The DOL’s guidance suggests that the agency will be focusing on retaliation as a potential enforcement priority. Employers should be 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, employers should reach out to an attorney who can assess legal risks and advise about best course of action.