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October 19, 2022 Did You Know?

New Department of Labor Guidance on Retaliation under the FLSA and FMLA

By Daniel Furshpan and Amanda Drantch

On March 10, 2022, the Wage and Hour Division (WHD) of the US Department of Labor (DOL) released new guidance intended for employers. The guidance gives specific examples of what constitutes unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and visa programs. The guidance contains several hypothetical situations to illustrate unlawful retaliation.

Employers should first take note of the definition of retaliation. The DOL defines retaliation as when an employer (through a manager, supervisor, administrator, or directly) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity. An adverse action is an action that would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity. Retaliation can take different forms. The new guidance from the DOL sought to exemplify what would constitute retaliation under the FLSA and FMLA.

The FLSA, which protects employees by establishing minimum wage and overtime pay and provides standards for employing minors, prohibits employers from taking adverse action towards an employee’s wages in cases where the employee makes complaints against their employer or manager. Accordingly, if an employee contacts the WHD (or is suspected of doing so) and inquires about proper procedures regarding pay, whether overtime or minimum wage, that employee cannot be terminated or disciplined for doing so. If an employee does contact the WHD about a suspected violation of the FLSA, the WHD may investigate and may subsequently file a cause of action to seek appropriate remedies.

One hypothetical scenario offered by the DOL concerning retaliation under the FLSA regards an hourly employee who uses her lunch break to express breast milk for her child. The mother needed additional time to finish and returned from lunch late. When the employee inquired whether she has a right to take another break to finish pumping, her boss sent her home for the rest of her shift without pay. In this situation, the employee was unlawfully sent home when attempting to exercise her rights under the FLSA; the WHD requires employers to provide “requisite time and space for nursing mothers.”

The FMLA permits eligible employees to take job-protected leave for certain family and medical reasons. Once the employee returns from leave, they are entitled to the same position or role with equivalent duties and equivalent pay, benefits, and other employment conditions. The DOL similarly offered new guidance and hypotheticals for what may be considered prohibited retaliation under FMLA.

For example, if an employer has a “no-fault attendance” scheme, an employee on approved FMLA leave to care for their child cannot receive negative attendance points for the days they were on leave. In this scenario, if the employee did receive negative attendance points, then the WHD would investigate and likely require that the points be removed.

Additionally, an employer cannot reduce an employee’s work hours in retaliation for the employee taking approved intermittent FMLA leave. If the employer does reduce the employee’s hours upon their return, the WHD will require the employee to be returned to her previous work schedule. Further, the employer will be required to pay the employee additional hours in lost wages for the duration of the period that they improperly worked on a reduced schedule.

With workplace laws constantly changing, employers must stay up to date with emerging DOL guidance. Doing so may help employers avoid actions that could put them at risk for possible violations and will protect employees’ rights. The full DOL guidance can be found here:

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By Daniel Furshpan and Amanda Drantch

Daniel Furshpan is an associate at Rivkin Radler LLP in Uniondale, New York. Amanda Drantch is a student at Syracuse University College of Law and a Summer 2022 Law Clerk at Rivkin Radler LLP in Uniondale, New York.