DOL Issues Guidance on Prohibited Retaliation Under FLSA and FMLA

Allen Smith, J.D. By Allen Smith, J.D. March 11, 2022
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A retaliation claim form, gavel and glasses

​The U.S. Department of Labor (DOL) released guidance on March 10 that gave specific examples of what constitutes unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and visa programs. The guidance shed more light on when no-fault attendance policies under the FMLA cross the line and violate the law.

FLSA

The DOL put forth several hypothetical situations to illustrate unlawful retaliation. Suppose "Nelson" worked as a cook at a restaurant and contacted the DOL's Wage and Hour Division confidentially to ask about overtime pay. He told another cook what he learned from the agency, and his co-worker told someone on the waitstaff. Later that day, their manager overheard two waitstaff employees talking about the call and fired Nelson.

Firing Nelson would be unlawful. The Wage and Hour Division would investigate, or Nelson could file a private cause of action seeking such remedies as reinstatement, lost wages and liquidated damages.

Liquidated damages are a multiplier of any back wages owed. "For every dollar of back wages owed, the FLSA includes provisions allowing for an additional dollar of damages to be added," said Michelle Anderson, an attorney with Fisher Phillips in New Orleans and Tampa, Fla.

In another example under the FLSA, "Aisha" was a new mother who worked for a call center. She used her lunch break to express milk and needed additional time to finish pumping before she was able to return calls at her workstation. Her boss complained when she was late returning from lunch and told her she could not use any time beyond her meal break for "personal stuff." When Aisha asked if she had a right to take another break for pumping later in the day, her boss sent her home for the rest of her shift without pay.

Aisha was sent home for attempting to exercise her rights under the FLSA, the DOL explained. The FLSA requires that employers provide "reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk." The FLSA also requires that employers provide "a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk."

FMLA

In one FMLA hypothetical, "Jaime" took approved FMLA leave to care for his 7-year-old daughter when she was in the hospital overnight and recovering from surgery. Jaime returned to work as scheduled but received three negative attendance points for the days he used FMLA leave. Under his employer's no-fault attendance plan, employees were allocated points for every absence from work, regardless of the reason for the absence. Employees were disciplined when they accrued a set number of points, and employees who accrued more than 10 points in a calendar year could be fired.

The DOL said assigning attendance points to Jaime's FMLA-protected leave days would be prohibited. 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. In an investigation, the Wage and Hour Division would require that the employer remove the attendance points from Jaime's employment record for the days he used FMLA leave to care for his daughter.

In another example, "Deborah" used FMLA leave from her job as a front-desk clerk at a hotel when she experienced migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode and used FMLA leave for two days. When she returned to work, her new manager reduced her schedule from 40 hours to 20 hours a week, saying the company needed workers who would show up every day.

The Wage and Hour Division would require the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. The division also would require the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages.

Visa Programs

Examples of prohibited retaliation by employers under various visa programs include:

  • Threatening an employee with deportation for refusing to sign a form declaring that deductions for a monthly sponsorship fee were for recouping personal loans the employer purportedly gave to the worker.
  • Flying into a rage and threatening agricultural workers with physical harm after they've asked for food and water.
  • Instructing workers not to talk to a Wage and Hour Division investigator and to destroy records of their time and locations of work or their visas will not be renewed.

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