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
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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.
