In light of the growing number of retaliation claims brought against employers by current and former employees, the U.S. Department of Labor recently announced an increased emphasis on enforcing the anti-retaliation provisions of various federal laws.
Underscoring this increased emphasis, the DOL issued guidance on March 10 containing examples of unlawful retaliation under the Family Medical Leave Act and the Fair Labor Standards Act. The scenarios described by the DOL provide some useful direction to employers as they navigate sometimes thorny issues concerning employee rights.
In one example, a father took approved FMLA leave to care for his daughter during a qualifying event in which she was hospitalized. Upon returning to work, the employee received three negative attendance points. The employer’s no-fault attendance plan allocated points for every absence, regardless of the reason, with disciplinary action including termination specified as possible consequences. DOL determined the employer’s actions constituted unlawful retaliation. This scenario shows how a workplace policy that is overbroad may violate federal employment law.
A second example involved a worker who occasionally took FMLA leave for migraines. Eventually, her employer reduced her scheduled hours. The DOL explained the employer would be required to return the worker to her previous schedule and to pay her for any missed wages during the reduced work schedule that the employer unlawfully imposed. The worker would also be entitled to recover liquidated damages in an amount equal to her lost wages. Employers should be aware that the FMLA requires that an employee who returns to work after approved leave be restored to the same or an equivalent position with the same benefits, pay, and terms of employment.
In an FLSA example, a worker contacted the DOL’s Wage and Hour Division (WHD) to confidentially ask about overtime pay. A co-worker learned about the discussion with the WHD, and a manager overhead the workers talking about the discussion. The manager terminated the employee who had called WHD, violating the FLSA. Employers may not take adverse employment action against employees who exercise their rights under the FLSA. Even if the employee had never contacted the WHD, the manager’s firing of them under the mistaken belief that they had done so, would constitute unlawful retaliation.
DOL’s heightened emphasis on enforcing anti-retaliation provisions should send a cautionary signal to employers. Managers should consult with qualified employment law counsel and coordinate with their human resources department to avoid unlawful violation of federal employment law.
* This article first appeared in The Journal Record on April 15, 2022, and is reproduced with permission from the publisher.