On March 10, 2022, the U.S. Department of Labor Wage and Hour Division (“WHD”) published Field Assistance Bulletin No. 2022-02: Protecting Workers from Retaliation (“FAB”).
The FAB details prohibitions against retaliation under the laws enforced by WHD, including the Fair Labor Standards Act; the Family and Medical Leave Act; the Migrant and Season Agricultural Worker Protection Act; the Immigration and Nationality Act; the United States-Mexico-Canada Agreement; Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors; EO 13658, Establishing a Minimum Wage for Contractors; EO 14026, Increasing the Minimum Wage for Federal Contractors; the Consumer Credit Protection Act (CCPA); and the Employee Polygraph Protection Act (EPPA). Specific examples of prohibited retaliation include:
- 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
- demotion
- excluding an employee from a regularly scheduled meeting
- intimidating employees to return wages found due
The FAB sets forth the WHD’s broad interpretation of employee protection. Specifically, the Fair Labor Standard Act’s prohibitions on retaliation prohibit any “person” from retaliating against an employee. This means the retaliating person does not have to be an employer or an employee of the employer and could be an outside agent of the employer. Employers are also prohibited from retaliating against former employees.
The FAB highlights that unlawful discharge includes constructive discharge. Constructive discharge occurs when an employer’s actions in response to an employee engaging in protected activity makes the work situation so intolerable that a reasonable person would quit or resign.
Retaliation under each law enforced by WHD is discussed in further detail in the FAB, and there are scenario examples involving prohibited retaliation.
Finally, the FAB draws attention to a renewed focus on interagency collaboration, as demonstrated by the January 6, 2022, Memorandum of Understanding with the National Labor Relations Board. According to the WHD: “In many cases, employees who have complained about a suspected violation of their rights under the laws that WHD enforces may have also engaged in protected, concerted activity under the National Labor Relations Act (NLRA).” This means that employers defending claims filed with one agency could easily find themselves subject to multiple investigations by different agencies based on the same complaint.
According to the Equal Employment Opportunity Commission, another agency charged with enforcing several employment laws prohibiting retaliation, in fiscal year 2020, 55.8% of charges filed with that commission alleged retaliation. Retaliation creates substantial litigation risks and potential damages. It also creates morale issues and can lead to high employee turnover. Employers need to be proactive about ensuring employees are not retaliated against and that strong anti-retaliation policies are in place and regularly communicated to employees.
