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DOL issues guidance on retaliation scenarios

The Fair Labor Standards Act and the Family and Medical Leave Act are robust laws. For some employers, it’s not always clear when employee activities are protected under these laws.

The U.S. Department of Labor (DOL) recently released guidance to help employers understand what constitutes illegal retaliation.

Fair Labor Standards Act (FLSA)

In one sample scenario, an employee who worked as a cook contacted the DOL to ask about overtime pay. He told another cook that he learned they should be earning extra pay for overtime hours. A manager overheard the conversation and fired the cook.

That would be an example of unlawful retaliation. An employee cannot be fired for contacting the DOL.

In another example, a new mother used her meal break to express breast milk and was late returning to work. Her manager told her she could not use extra time for “personal stuff.” When she asked for another pumping break later in the day, her manager sent her home for the rest of her shift without pay.

This is a violation under the FLSA because employers are required to provide reasonable break time for expressing milk each time an employee has a need, for one year after the child’s birth. Employers are further required to provide a place, other than a bathroom, that is shielded from view and free from intrusion.

Family and Medical Leave (FMLA)

In one scenario, an employee took approved FMLA leave to care for his daughter. The employee returned to work as scheduled but received three negative attendance points under the employer’s “no-fault” attendance plan. Employees who reach a set number of points can be fired.

Allocating absence points when employees are on FMLA leave is a violation. Protected leave cannot count under no-fault attendance policies.

In another example, a hotel clerk was approved for intermittent FMLA leave when migraines made it impossible for her to work. However, after using her leave a few times, her manager reduced her schedule from 40 hours to 20 hours a week, saying they needed employees who could show up consistently.

That qualifies as a violation. In that scenario, the DOL would require the hotel to reinstate the clerk’s original schedule and pay for lost wages as well as liquidated damages.

When employees are terminated or lose work hours due to protected activities, they can seek remedies such as reinstatement, lost wages and liquidated damages. Provisions allow for employees to receive an additional dollar of damages for every dollar of back wages owed.

Per DOL guidance, complaints made to the DOL are protected, and most courts have ruled that internal complaints to an employer are also protected.

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