Judge Blocks Private Employer Portions of Florida's Idiotic Stop WOKE Act

 I wrote a few weeks ago about the truly idiotic Stop WOKE Act that was passed in, you guessed it, Florida. Well, a federal judge just issued an injunction blocking its enforcement against private employers. The federal judge from the Northern District of Florida was duly irked:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. . . . Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down.

The law, among other things, prevented private employers from certain diversity and anti-discrimination training. 

The Court gives a detailed example, and the judge's frustration is palpable:

In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow. Worse still, “it trivializes the freedom protected” by Title VII and the FCRA “to suggest that” the two are the same. FAIR, 547 U.S. at 62.

Just imagine two scenarios. In the first scenario, a Black employee complains about a mandatory safety training scheduled on Juneteenth. Then, at a mandatory training the day before Juneteenth, “to the surprise of the employees in attendance, a white woman in a black gorilla suit enter[s] the meeting.” Henry v. CorpCar Servs. Hous., Ltd., 625 F. App’x 607, 608 (5th Cir. 2015).* As one of the managers blocks the only exit, the woman does “Tarzan yells and repeatedly refer[s] in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. As the woman dances suggestively on one of the Black employees who had complained, another manager leans in and says: “Here’s your Juneteenth.” Id. In the second scenario, a company directs a White employee to attend a mandatory training in which employees watch “a video about violence committed against Black people in the United States over the centuries.” ECF No. 18-3 at 4. After the video, the presenter defines “Black rage”—“resistance towards oppressive people, practices, structures, and systems”—and “White Humility”—“a reflective practice that helps white people develop [the]capacity to interrupt white supremacy”—and asks Black and White participants to discuss them. Id. at 4, 12, 14. 

These two scenarios, under Defendants’theory, are indistinguishable. Indeed, Defendants say, to hold that the state may not ban the latter scenario is to hold that it may not ban the former. ECF No. 49 at 27 (arguing that a ruling for Plaintiffs would doom “a vast range of routine employment discrimination claims”). “If the law supposes that, the law is an ass, an idiot.” Charles Dickens, Oliver Twist 463 (3d ed. The New American Library 1961). But the law is neither an ass nor an idiot. It can tell the difference. Telling your employees that concepts such as “normal” or “professional” are imbued with historically based racial biases is not—and it pains this Court to have to say this—the same as trapping Black employees in a room while a woman in a gorilla suit puts on a retaliatory, racially inflammatory performance the day before a holiday celebrating the end of slavery. Rather, it is speech protected by the First Amendment. (emphasis added)

Things you didn't think you had to say when you became a federal judge, but apparently did.

The state is, of course, appealing. And because the injunction applies only to private employers, state employees are being terrorized by this ridiculous law, especially since schools and colleges are resuming.

I'm sure this isn't the last we'll hear on this law. As I wrote before, the law is badly written and I believe it actually means the opposite of what the legislature intended. SMH. 

* The fact that the judge doesn't have to make this bizarre scenario up explains why I have had a busy law practice for 36 years.

Yes, It's Illegal To Retaliate If HR Managers Or Management Oppose Discrimination

Management-side lawyers are always trying to come up with new ways to make discrimination and retaliation legal. So it's no surprise that they argued in a recent case that there is a "management exception" to retaliation. The theory was that, if an HR manager or other management opposes discrimination as part of their regular job duties, they aren't covered by anti-retaliation laws.

The 11th Circuit has clearly rejected this argument:

The manager exception would carve out of Title VII protection the actions of management employees who have in the course of their normal job performance opposed an unlawful employment action of an employer. That carveout does not fit within the ordinary meaning of the word "opposed," and it is contrary to how Title VII uses the word. For one thing, the statute does not put any qualification on the word "opposed." It does not say an employee has engaged in protected activity unless her opposition came as part of her duties in the normal course of her employment.

Because it's not explicit in the text, to limit the plain meaning of "opposed," the manager exception would have to be implicit in how a person speaking "in ordinary discourse . . . would naturally use the word" opposed. Crawford, 555 U.S. at 277. But the limitations imposed on the word "opposed" by the manager exception would be neither "ordinary" nor "natural" to someone using that word. A person speaking "in ordinary discourse" would think an HR manager has opposed her employer's unlawful employment practices even if it's part of her job to do so. Opposition is opposition, whether the opposer is drawing a manager's salary or not.

It is too big a stretch to think that Congress silently and implicitly wrote into the opposition clause a significant exclusion of an entire category of employees, HR managers. We "assume that Congress does not generally hide elephants in mouseholes." CSX Transp., Inc. v. Ala. Dep't of Rev., 888 F.3d 1163, 1176 (11th Cir. 2018) (quotation marks omitted). That assumption is especially true here where the elephant would have to trample the ordinary and plain meaning of the words Congress did choose.

Whew! Thank goodness. Another attempt to make retaliation legal is rejected. If you're an HR person or other management employee who has opposed discrimination, it's illegal for your employer to retaliate against you. If you think illegal retaliation happened to you, contact an employee-side employment lawyer in your state to discuss your rights. 

New Employer's Retaliation For Opposing Discrimination By A Former Employer Is Illegal

 One of the biggest worries I hear from clients and potential clients is the fear that filing a lawsuit for discrimination will follow them to a new employer. And it's a legitimate concern. A lawsuit is a public record. It will turn up in a background check. Plus, you'll have to testify and appear at hearings in your case, and your new employer will likely find out about your case. Even if it's not your case, what if you're subpoenaed to testify in a former coworker's case?

So, can a new employer retaliate against you for opposing discrimination by a former employer? The 11th Circuit Court of Appeals says such retaliation is illegal.

There is nothing in the anti-retaliation provision's opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by "an employer" against "any individual" for having "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). It doesn't say "opposed any practice of a current employer made an unlawful employment practice by [Title VII]." A former employer's unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is "an employer," not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article "an" means "any." See Alabama, 778 F.3d at 933. Georgia Pacific is unquestionably "an employer," and at the time it allegedly retaliated by firing Patterson it was her employer.

We hold that under the opposition clause's plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.").

This case only refers to an employer, and not a potential employer. A discrimination lawsuit can turn up in a background check and there could be little way to prove that it was the reason you were denied a position. Still, Title VII makes such discrimination illegal:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Fair Credit Reporting Act requires that employers provide you with a copy of any background check that caused them to turn down your employment, so it's wise to ask for a copy of any background check to see if a discrimination lawsuit is mentioned.

Bottom line: employers and potential employers can't legally discriminate against you for opposing discriminaiton by a former employer. It's your burden to prove that was the reason, but if you think this is what happened, talk to an employee-side employment lawyer in your state about your rights. 

Employer Asking About Family Members' COVID Test Results Is Illegal

EEOC recently settled a case where an employer was deemed to have violated the Genetic Information Nondiscrimination Act by collecting COVID testing data about employee family members. If your employer is making you provide information about your family's COVID test results, they may be breaking the law.

So what does COVID testing have to do with genetic information? EEOC provided some guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. They provide this information:

May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

GINA generally protects employees from discrimination relating to their family medical histories, so asking for family medical information is a big no-no.

In sum, your employer can ask you if you have had contact with anyone who has COVID or COVID symptoms. They cannot specifically demand your family member's test results or whether family members have COVID or COVID symptoms. 

If you think your employer is violating GINA, contact an employee-side employment attorney in your state about your rights.

Did A Computer Reject Your Job Application? You May Have A Disability Discrimination Claim

 Some large employers have left their hiring, promotion, and firing decisions up to computers instead of real humans. And while that may be more efficient, it may also be causing them to reject disabled applicants. EEOC has issued a guidance on The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The guidance provides examples of when computers can cause disability discrimination.

EEOC lists some types of employment screening tools that employer use which could cause disability discrimination. These include "resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test."

Per EEOC, the most common ways that an employer’s use of these decision-making tools could violate the ADA are:

The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. 

The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.

The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

EEOC provides multiple examples of how these violations might occur:

• [A] job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.
• An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.
• Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.
• [S]ome employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.
• [S]ome pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer. Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.
• [S]uppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.
• [I]f a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD.

EEOC has some specific suggestions to help you assure you're being assessed fairly:

If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability. If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation. To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

If you have a disability and are getting rejected by computers, or if you are  being assessed by means that include computer algorithms, then you might consider contacting an employee-side employment attorney to find out about your rights.

Some Cool New Laws Pending In Congress That Will Help Employees If Passed

 It isn't all bad news out there. Some bills pending in Congress look hopeful for employees. Of course, they probably won't get through the deadlocked Senate, but hey, let's be optimistic. If you think these bills should become law, call your Senators and members of Congress.

Here are some of the pro-worker bills pending and the descriptions their sponsors have given them:

S.505 - Forced Arbitration Injustice Repeal Act - This bill prohibits a predispute arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

S.3641 - Part-Time Worker Bill of Rights Act - This bill modifies various employment, leave, and pension rules with respect to part-time workers. Specifically, the bill removes the requirement that employees work a minimum number of hours during the preceding 12-month period before becoming eligible for family and medical leave.

The bill also sets the maximum length of service on which employers may condition the eligibility of part-time employees for a qualified pension plan (e.g., 401(k) retirement plan). Except as required by an applicable collective bargaining agreement, such service requirement may be no longer than two consecutive 12-month periods of at least 500 hours of service for part-time employees who have reached the age of 21 by the end of such period.

The bill further prohibits employers of more than 15 employees from setting disparate terms of employment or working conditions for part-time employees, including with respect to compensation, notice of work hours, and promotion opportunities. Additionally, the bill requires such employers to offer available, qualified part-time employees additional work hours before hiring new employees for such hours. Among other enforcement methods, employers must maintain three years of records for offers of additional hours and employee responses to such offers. The bill also provides a private right of action for employees to enforce the nondiscrimination requirements of this bill.

S.3642 - Schedules That Work Act - This bill provides employees with the right to request changes to their work schedules related to the number of hours they are required to work or be on call, the location of the work, the amount of notification about work schedule assignments, and fluctuations in work hours.

Employers must negotiate in good faith with employees who make such requests and comply with certain work schedule notice and split shift pay requirements for retail, food service, cleaning, hospitality, or warehouse employees.

H.R.6762 - Special Inspector General for Law Enforcement Act - there is no description by the sponsor yet, but this would provide whistleblower protections for law enforcement employees who report wrongdoing by colleagues, ending the blue wall of silence.

H.R.7489 - Time Off to Vote Act - This bill requires an employer, upon the request of an employee, to provide the employee with a minimum of two consecutive hours of paid leave in order to vote in a federal election.

The employer may determine the two-hour period, excluding any lunch break or other break.

Taking such leave shall not result in the employee losing accrued employment benefits.

The bill makes it unlawful for an employer to interfere with the right to take such leave or for an employer to discriminate against an employee for taking such leave. Further, the bill makes it unlawful for any employer to retaliate against an employee for (1) opposing any practice made unlawful by this bill; (2) filing a charge, or instituting or causing to be instituted any proceeding, under or related to this bill; or (3) testifying or preparing to testify in an inquiry or proceeding relating to such leave.

The bill specifies penalties for employers who violate these provisions.

H.R.2243 - Fair Pay Act of 2021 - This bill requires employers to provide equal pay to employees for comparable or equivalent work.

Specifically, employers may not discriminate against employees on the basis of sex, race, or national origin with respect to payment of wages or other conditions of employment for jobs that, although dissimilar, the requirements of which are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions. However, employers may pay different wages in accordance with seniority systems, merit systems, systems that measure earnings by quantity or quality of production, or factors that the employer demonstrates are reasonably job-related, or further legitimate business interests. The bill allows compensatory or punitive damages for violations of this prohibition.

The bill prohibits an employer from (1) discriminating against any individual who opposes any act or practice made illegal by this bill or for assisting in an investigation, or (2) discharging or discriminating against any employee who inquires about or discusses another employee's wages.

The Equal Employment Opportunity Commission must assist employers, labor organizations, and the general public in implementing these provisions.

S.2390 - Support Through Loss Act - This bill provides employees with 24 hours of paid leave time each year for an absence resulting from a pregnancy loss or other specified circumstance related to pregnancy, fertility, or an unsuccessful assisted reproductive procedure or adoption match.

Employers must notify each employee about the availability of this paid leave and may not discriminate or discharge an employee for exercising or attempting to exercise the right to such paid leave.

The bill provides for enforcement of this requirement by the Department of Labor and through civil action brought by an employee or individual.

Further, the bill requires specified federal agencies to conduct research and publish information about pregnancy loss and related evidence-based treatment options.

H.R.1065 - Pregnant Workers Fairness Act - This bill prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the bill declares that it is an unlawful employment practice tofail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The bill sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices.

H.R.3610 - Flexibility for Working Families Act - This bill allows an employee to request from an employer a temporary or permanent change in the terms or conditions of the employee's employment if the request relates to (1) the number of hours the employee is required to work, (2) the times when the employee is required to work or be on call for work, (3) where the employee is required to work, or (4) the amount of notification the employee receives of work schedule assignments. The bill sets forth certain employer duties with respect to such requests.

The bill prohibits an employer from interfering with any rights provided to an employee under this bill. An employee may file a complaint with the Department of Labor for any violations of such rights. Labor shall investigate and attempt to resolve such complaints and may issue orders making determinations and assessing civil penalties or awarding relief for alleged violations. The bill provides for judicial review of such orders, including in federal courts of appeal.

Labor and certain federal agencies and offices shall provide information and technical assistance to employers, labor organizations, and the general public regarding compliance with this bill.

The Wage and Hour Division of Labor must issue guidance on compliance with providing a flexible work environment through changes in employee terms and conditions of employment as provided in this bill.

The requirements of this bill are applicable to certain classes of employees, including employees of the Government Accountability Office and the Library of Congress.The Equal Employment Opportunity Commission must provide examples of reasonable accommodations that shall be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.

The bill prohibits state immunity under the Eleventh Amendment to the Constitution from an action for a violation of this bill.

H.R.842 - Protecting the Right to Organize Act - This bill expands various labor protections related to employees' rights to organize and collectively bargain in the workplace.

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The bill also allows collective bargaining agreements to require all employees represented by the bargaining unit to contribute fees to the labor organization for the cost of such representation, notwithstanding a state law to the contrary; and expands unfair labor practices to include prohibitions against replacement of, or discrimination against, workers who participate in strikes.

The bill makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership and prohibits employers from entering into agreements with employees under which employees waive the right to pursue or a join collective or class-action litigation.

The bill further prohibits employers from taking adverse actions against an employee, including employees with management responsibilities, in response to that employee participating in protected activities related to the enforcement of the prohibitions against unfair labor practices (i.e., whistleblower protections). Such protected activities includeproviding information about a potential violation to an enforcement agency,
participating in an enforcement proceeding,
initiating a proceeding concerning an alleged violation or assisting in such a proceeding, or
refusing to participate in an activity the employee reasonably believes is a violation of labor laws.

Finally, the bill addresses the procedures for union representation elections, provides employees with the ability to vote in such elections remotely by telephone or the internet, modifies the protections against unfair labor practices that result in serious economic harm, and establishes penalties and permits injunctive relief against entities that fail to comply with National Labor Relations Board orders.

This is only a sampling of pro-employee laws that could be passed and that are pending right now. It isn't that we don't know how to protect employees. It's that we don't. Talk to your elected officials about these pro-employee laws, and vote well in November and beyond.

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.