DOL Offers Examples of Unlawful Retaliation Under FLSA and FMLA

The U.S. Department of Labor Wage and Hour Division (WHD) recently provided detailed examples on what types of situations give rise to claims for retaliation under the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The examples are detailed in several hypotheticals.

The first example deals with retaliation under the FLSA. In the example, a cook, named Nelson, contacts WHD confidentially to ask about overtime pay. Nelson tells his co-worker what he learned from WHD and his co-worker tells someone on the waitstaff. Later that day, their manager overhears two waitstaff talking about the call and terminates Nelson. In the scenario, terminating Nelson because he contacted WHD (or was suspected of contacting WHD) would be prohibited. Nelson may seek his own private cause of action against his employer. If Nelson prevails, the employer may be required to reinstate Nelson or pay lost wages and liquidated damages. 

In the second example, an employee asks for added break time to express breast milk. In the example, Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs extra time to finish pumping before she is able to return calls at her work station. Aisha’s boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay.

In this example, Aisha was sent home for trying to exercise her rights under the FLSA because the law requires an employer to provide requisite time and space for nursing mothers. Aisha, if she prevails in a lawsuit, may be able to recover back pay and liquidated damages for wages she lost when her boss sent her home.

WHD also provided examples of retaliation under the FMLA.

In the first FMLA example, a worker is penalized for using FMLA leave to care for a child. In the example, an employee named Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no-fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. WHD notes in the example that assigning attendance points to Jaime’s FMLA leave days would be prohibited.

The FMLA’s anti-retaliation provision prohibits an employer from assigning negative influence to an employee taking approved FMLA leave. WHD notes that following an investigation, they would likely require the employer to remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter.

In the second FMLA retaliation example, an employee returns to work after taking FMLA leave and has her hours cut in half. In the example, an employee named Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work, her new manger reduced her schedule from 40 hours to 20 hours a week, saying they need workers who will show up every day.

WHD notes that upon completing an investigation, it likely would require the hotel to restore Deborah to her previous schedule and pay her for an added 20 hours a week in wages for the  period she worked the reduced schedule. Deborah’s employer would also likely be required to pay an amount equivalent to her lost wages in liquidated damages.

These examples serve as guideposts to employers about the risks of taking adverse employment actions against employees trying to exercise their rights under the FMLA or FLSA. But the examples are illustrative and certainly do not encompass all possible situations. More information about retaliation under the FLSA and FMLA may be found here. 

Please contact Michael Victorian or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.