US DOL Signals Focus on Enforcing Anti-Retaliation Laws
On March 10, the U.S. Department of Labor Wage and Hour Division issued a Field Assistance Bulletin (FAB) titled “Protecting Workers from Retaliation,” which signals that the DOL will be more aggressively pursuing investigations and litigation for violations of federal anti-retaliation laws. Underscoring the seriousness and comprehensiveness of the Department’s intentions, the FAB spells out the protected activity, examples of violations, and remedies that may be pursued for violations of 14 specific laws, regulations, and Executive Orders, including the FLSA, FMLA, MSPA, USMCA, CCPA, EPPA, EO 13706, EO 13658, EO 14026, and the H-1B, H-1B1, H-2A, H-2B and E-3 Visa Programs. The FAB also specifically addresses “adverse actions” in the context of constructive discharge. The FAB alerts employers that the Department “will use every enforcement tool available to address retaliation” and “will consider all remedies and sanctions available” including injunctive relief, compensatory damages, make-whole relief, and punitive damages.
Takeaway for Employers
While the FAB does not make substantive changes to the laws, regulations and Executive Orders identified in the FAB, it does signal the Department’s renewed focus on interagency coordination to combat prohibited retaliation and sends a strong message that employers should be proactive about ensuring compliance with employee anti-retaliation protections.
- Review existing anti-retaliation policies for conformance with the FAB’s broad interpretation of employee protection.
- Ensure proper anti-retaliation and disciplinary procedures are in place.
- Communicate policies and procedures prohibiting retaliation.
- Promptly investigate claims of retaliation.
- Follow a consistent process for investigating, taking disciplinary action, and resolving retaliation claims.
Litigation attorney Chelsea Latino created a checklist outlining the FAB’s overall guidance on prohibited retaliation as a reference tool to help employers create, update, implement, and enforce their anti-retaliation processes, procedures and protocols. Chelsea is available to answer questions about retaliation in general as well as how the FAB addresses retaliation under each of the fourteen laws, regulations and Executive Orders specified in the FAB.
Employer’s Anti-Retaliation Checklist
- Definition of prohibited retaliation – Employer (incl. manager, supervisor, administrator, other agent) takes adverse action against an employee because the employee engaged in a protected activity.
- Examples of employee protected activity – Making a complaint to a manager, employer, or USDOL/WHD; cooperating with a USDOL/WHD investigation; requesting payment of wages; refusing to return wages to the employer; consulting with USDOL/WHD staff; exercising or attempting to exercise rights (e.g., requesting certain types of leave, testifying at trial); and complaints by a third party on behalf of an employee.
- Employee’s mistaken belief of violation – An employee can be protected from retaliation even if the employee’s complaint is based on a mistaken belief that the employee’s rights have been violated (e.g., if an employee tells an employer that the employee is owed overtime pay, the employee has engaged in a protected activity even if it turns out to be a mistaken belief because the employee has been correctly paid)
- Definition of adverse action – Any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity (e.g., filing a complaint, cooperating in a USDOL/WHD investigation)
- Examples of adverse actions (overt and subtle) – Termination; confiscating employee’s passport or 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; demotion; excluding employee from a regularly scheduled meeting; intimidating employees to return back wages found due; and threatening employee with deportation.
- Constructive Discharge can be an adverse action – Constructive discharge occurs when an employee ends employment because working conditions have become so intolerable that a reasonable person in the employee’s position would not continue the employment. The FAB states that “constructive discharge is another type of adverse action. Workers who have been constructively discharged may be entitled to lost wages or other forms of make-whole relief.” The FAB advises that USDOL/WHD investigators “should assess whether workers who have resigned their employment following the filing of a complaint or engaging in another form of protected activity have been subject to a constructive discharge.”
- Retaliation despite employer’s mistaken belief – Retaliation requires a causal connection between the protected activity and the employer’s adverse action, and an employer’s action may constitute retaliation even if based on a mistaken belief that the employee participated in protected activity (i.e., if an employer suspects an employee filed a complaint with USDOL/WHD and then terminates the employment, the employer engaged in retaliation even if the employee did not file a complaint)
- Available remedies – Depending on the statute and court, an employer found to have retaliated against an employee may be required to reinstate or return the employee to a prior position; remove any disciplinary action or “letters of reprimand” in the employee’s personnel record, pay back wages to the employee, including the same amount as liquidated damages; pay additional compensatory damages, including for emotional distress, or punitive damages; pay attorney fees and court costs; or be subject to court injunctions prohibiting future retaliation against any employees.
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