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Thursday, July 14, 2022

Department Of Labor Gives Examples of Illegal Retaliation

The U.S. Department of Labor has provided a guidance that gives specific examples of what constitutes illegal retaliation. The complete guidance is here. Some specific examples they provided are:

Example 1: Employee calls WHD about overtime. 

Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages. 

Example 2: Employee asks for additional break time to express breast milk. 

Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. 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 Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA. After investigating, WHD, in addition to requiring the employer to provide the requisite time and space for nursing mothers in compliance with the law, determines Aisha may also be entitled to back pay and liquidated damages for wages she lost when her boss sent her home in retaliation for requesting a break. 

Example: Worker penalized for using FMLA leave to care for child. 

Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime 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, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. 2 A state employee’s private right of action may be limited by the sovereign immunity provision of the Eleventh Amendment. Id. 6 In this scenario, 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, WHD 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. 

Example: Employee returns to work and her hours are cut in half. 

Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from 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 they need workers who will show up every day. WHD completes an investigation and requires 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. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages. 

Example: WHD investigates and employer fires crew of agricultural workers. 

An employer houses 15 migrant agricultural workers in housing that is determined to be substandard. Workers sleep on the floor, have no electricity, use water from a garden hose, and have one hotplate for cooking that is shared among all of the workers. After a WHD investigator arrives at the location unannounced to inspect the housing conditions and interview workers, the employer fires all 15 workers because, “We don’t want any whiners on the team.” The employer does not pay the workers for their final week of work. In this scenario, WHD may pursue back pay, and reinstatement of employment for every worker, and civil money penalty assessments against the employer.

Example: Worker threatened with deportation. 

An employer participating in the H-1B visa program hired seven workers with H-1B visas to provide occupational, physical, and speech therapy services to patients in their homes. The employer deducted a monthly sponsorship fee from the pay of each worker with an H-1B visa. The employer required the workers to sign a form declaring that the deductions were for recouping personal loans it purportedly gave to the workers. When one worker refused to sign the document, the employer threatened him with deportation, criminal perjury, and threats of physical violence against his family in his home country. In this scenario, WHD may pursue back wages for the illegal deduction, civil money penalties against the employer for the retaliation, debarment from the H-1B program for two years, and other appropriate legal or equitable remedies. WHD also may, potentially, make a referral to the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section.2F 3

Example: Supervisor lies about employee’s performance history because of WHD interview. 

Charlotte is an employee at a vehicle assembly plant where WHD conducts an LVC compliance verification under the USMCA. She was instructed by her immediate supervisor to tell WHD representatives that she earns $16 an hour despite the fact that she actually earns $13.50 an hour. After the WHD representatives leave the worksite, Charlotte’s supervisor asks her what she said to WHD representatives. When Charlotte states that she told the truth, the supervisor fabricates a story of insubordination that results in the termination of Charlotte’s employment. Charlotte had no prior occurrences of corrective action and was otherwise in good standing with her employer. In this scenario, after investigating and verifying that Charlotte was retaliated against for cooperating with a WHD investigation, WHD may pursue lost wages, reinstatement, and the assessment of a civil money penalty.

Example: Federal contract worker’s promotion denied after they inquire about sick leave. 

Bernard works on a federal contract covered by EO 13706. He is a supervisor of maintenance services at a national park and is about to be promoted. When Bernard emails his employer, the contractor, asking about the availability of paid sick leave to attend his spouse’s upcoming medical appointments, his planned promotion is cancelled and he is rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, his manager states the changes were made so that he would have fewer responsibilities at work and more time available to help with his wife’s health care. A representative for the national park (the contracting agency) who communicates with Bernard about work orders during the week, contacts WHD on Bernard’s behalf. In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its regulations. The employer may be required to grant Bernard the promotion and return him to his previous work schedule and duties. He may also receive back wages to compensate for any difference in wages received compared to the wages he would have received if the retaliatory actions had not occurred. 

Example: Contract worker asks about deductions from pay and is denied bonus.

Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks her company payroll department about deductions from her paycheck that may bring her earnings below $15.00 per hour. The payroll department refers her question to a corporate officer of the company who directs the payroll department to cancel Geri’s quarterly performance bonus. In this scenario, a retaliatory denial of the bonus would be prohibited by EO 14026. WHD may investigate, determine the employer violated the EO, and require payment of the bonus and other wages that may be due if the deductions were improperly made.

These are just a few examples they provide for retaliation. The agency also describes retaliation in general:

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity.

 Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial. 

Under many of the statutes enforced by WHD, an employee can be protected from retaliation even if the employee’s complaint to the employer or WHD is based on a mistaken belief that the employee’s rights have been violated. For example, if a worker believes, and so tells an employer, that he is owed overtime pay for the hours he worked, the worker has engaged in a protected activity, even if the worker’s belief that he is due overtime turns out to be mistaken because he has been correctly paid. 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee. 

Bottom line: If you think you've been retaliated against for objecting to something illegal your employer did, for contacting a government agency, or for taking protected medical leave, you should talk to an employment lawyer in your state about your rights. 


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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.