DOL Provides Examples: NO Federal Law Retaliation

During March 2022, the Department of Labor (DOL) released guidance providing specific examples of unlawful retaliation under various laws including the Fair Labor Standards Act (FLSA) the Family and Medical Leave Act(FMLA), the Consumer Credit Protection Act (CCPA), and various visa programs.

Under the FLSA, prohibited retaliation includes terminating an employee who contacts the DOL’s Wage and Hour Division confidentially to ask about overtime pay—opening the employer up to a wage and hour investigation or a private cause of action. The protected employee could be eligible for reinstatement, lost wages and liquidated damages.

In another FLSA example, an employer may not take adverse action against an employee who requests a break to express breastmilk, e.g., sending the employee home early from a shift without pay.

Under the FMLA, applying negative attendance points under an employer's no-fault attendance plan for FMLA-protected leave days is prohibited. FMLA leave cannot be used as a negative factor for employment actions, including no-fault attendance policies.

In another FMLA example, the DOL warns that, absent the employer's proving an undue hardship, an employer who reduces an employee's schedule following FMLA leave would be required to return the employee to his or her original working schedule and pay that employee any lost wages in liquidated damages.

Under the CCPA, for example, prohibited retaliation includes demoting an employee after the employer receives a court order to garnish a portion of the employee’s wages for repayment of a loan.

Examples of prohibited retaliation under various visa programs include: threatening deportation for refusing to sign forms that include false statements, instructing employees to obstruct an investigation by the Wage and Hour Division, and refusing to renew a complaining employee’s visa.

Each Act provides for specific protected activity and the types of remedies that may be pursued by the DOL or by individuals following alleged violations of anti-retaliation protections. Potential remedies and sanctions include injunctive relief, compensatory damages, and punitive damages where appropriate.

Concerns about the DOL’s anti-retaliation protections, we are here to help!

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