Recently, the U.S. Department of Labor (DOL) announced an increased emphasis on enforcing the anti-retaliation provisions of various laws intended to protect workers who engage in protected activity such as exercising their rights under wage and hour laws or cooperating in an investigation by the DOL’s Wage and Hour Division (WHD). As part of that heightened emphasis, the DOL released guidance on March 10 providing specific examples of actions that constitute unlawful retaliation under the Family Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA).
In one of the examples, a father who took approved FMLA leave to care for his hospitalized daughter received three negative attendance points upon returning to work. The employer’s no-fault attendance plan allocated points for every absence, regardless of the reason. Employees who accrued a certain number of points were subject to discipline, including termination. The DOL noted that the employer’s actions would be prohibited under the FMLA. Taking a negative employment action based on the use of FMLA leave and counting FMLA leave days under the no-fault attendance policy constitute unlawful retaliation, the DOL said. This scenario illustrates how a broadly applied, seemingly neutral policy may run afoul of the FMLA’s anti-retaliation provision.
In another example, a worker took intermittent FMLA while suffering from migraine headaches. After returning from one leave period, her employer cut her scheduled hours in half. According to the DOL, the employer would be required to return the worker to her previous schedule and to pay her for the hours she missed while working the reduced schedule imposed by the employer. The worker would also be entitled to recover liquidated damages in an amount equal to her lost wages. Employers should remember that an employee returning from FMLA leave must be restored to the same or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
In one of the FLSA examples, a worker confidentially contacted the WHD to ask about overtime pay. The worker told one of his coworkers about the call, and word quickly spread to other employees. The employees’ manager heard the employees talking about the call and terminated the employee who contacted the WHD. The termination amounted to prohibited retaliation under the FLSA. Employers may not take adverse employment action against employees who exercise their rights under the FLSA. Importantly, even if the employee had never contacted the WHD, the manager’s firing of him under the mistaken belief that he had done so would constitute unlawful retaliation.
Another FLSA example involved a new mother who used her meal break to express milk and needed additional time to finish pumping before returning to work. Her boss told her she could not use any time beyond her meal break. When the mother asked if she could take another break to express milk later in the day, her boss sent her home for the rest of her shift without pay. According to the DOL, this also involves retaliation against an employee seeking to exercise her rights under the FLSA. Though many employers may not be aware of it, the FLSA requires them to provide “reasonable break time” for employees to express breast milk for a nursing child for one year after the birth each time the employee needs to do so. Employers must also provide a place, other than a bathroom, that is “shielded from view and free from intrusion from coworkers and the public,” where the employee can express milk.
The DOL’s stepped-up emphasis on enforcing anti-retaliation provisions likely means employers will be faced with more visits from WHD investigators in the future. Employers should consult with qualified employment law counsel before taking adverse employment actions that could put them at risk of violating prohibitions on unlawful retaliation.
If you have questions related to WHD investigations and the DOL’s enforcement of anti-retaliation provisions, please contact Michael R. Pacewicz or another member of the firm’s Labor & Employment Practice Group.