On March 10, 2022, the U.S. Department of Labor (DOL) released guidance containing specific examples of what it considers “unlawful retaliation” by employers under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA) and visa programs. DM Payroll Solutions shares details from the recent guidance to learn how you can practically apply it throughout your organization if an ambiguous situation arises in the future.  

FLSA Examples

In its guidance, the DOL detailed several hypothetical situations to demonstrate unlawful retaliation of the FLSA. Here are two scenarios you may be familiar with.

1. Game of Telephone

Joe is a cook at a restaurant. He contacted the DOL’s Wage and Hour Division (WHD) confidentially to inquire about overtime pay. After the call, he informed a co-worker what he had learned, who then passed on the findings to another staff member. Later, their manager overheard the two employees discussing the call and fired Joe.

However, the DOL stated firing Joe would be considered unlawful. The WHD would investigate, or Joe could file a case of his own, seeking remedies including reinstatement, liquidated damages and lost wages. Liquidated damages are a multiplier of any back wages owed, as the FLSA contains provisions allowing for another dollar of damages to be added to every dollar of back wages owed to Joe.

2. Dismissed Nursing Mother

Connie is a new mother who works in customer service. During her lunch break, she had to express milk and needed more time to finish pumping before returning to work. Her boss was frustrated she was late returning from lunch and informed her she could not take any additional time outside of her meal break for “personal stuff.” When Connie asked if she had a right to take an additional break later in the day to pump, her boss sent her home for the rest of the shift without pay.

The DOL explained Connie was dismissed for attempting to exercise her rights under the FLSA, which requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Further, the FLSA requires employers offer “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.”

FMLA Examples

The DOL also outlined hypothetical situations for FMLA unlawful retaliation. Take a look at these two cases that commonly occur within the workplace.

1. Negative Attendance Points for Child’s Surgery

When Brad’s six-year-old daughter needed to have an important surgery, he took approved FMLA time off to care for her. When he returned to work on the agreed-upon date, he learned he had received three negative attendance points for the days he was off caring for his daughter. Under his employer’s no-fault attendance plan, employees are still given points for every work absence, no matter the reason. Employees were disciplined when they hit a certain number of points, with some being fired if they had more than 10 points in a calendar year.

The DOL stated that issuing attendance points to Brad’s FMLA-protected leave is prohibited. According to the FMLA’s anti-retaliation provisions, employers cannot use FMLA leave as a negative factor when determining employment actions and cannot count FMLA leave time under no-fault attendance policies. In the event of an investigation, the WHD would demand the employer remove the attendance points for Brad’s FMLA leave from his employment record.

2. Reduced Work Hours Over Migraines

Sarah works as a concierge at a popular hotel. She frequently experiences debilitating migraines which make it impossible for her to work. Due to her condition, she was approved for FMLA leave, which she used for three days in July and one day in August. In October, she experienced another migraine and took two more days of FMLA leave. Upon returning to work, she learned her manager reduced her weekly hours from 40 to 20, saying the hotel needed staff who could be consistent and show up when they’re scheduled to work. 

In this case, the WHD would require the hotel to reinstate Sarah’s previous work schedule of 40 hours per week, as well as pay her for an additional 20 hours a week in wages for the time she worked the reduced schedule. The WHD would also require the hotel to pay Sarah liquidated damages in the same amount as her lost wages.

Visa Program Examples

On top of the FLSA and FMLA guidance, the DOL also issued examples of prohibited retaliation by employers under certain visa programs, including:

• Using deportation as a threat for employees who refuse to sign a form stating deductions for a monthly sponsorship fee were used for recouping personal loans the employer allegedly gave to the employee.
• Threatening agricultural workers with physical harm when they ask for food and/or water.
• Demanding workers do not talk to a WHD investigator and destroy records of their work time and locations, or their visas will not be renewed.

Is your organization struggling to keep up with the many requirements of the FLSA, FMLA or visa programs? DM Payroll Solutions offers access to HR support to complement its payroll solutions to help answer your questions on labor law. Contact us today to learn more.

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