Retaliation occurs when an employer takes adverse action against an employee because they engaged in a protected
The Bulletin provides several examples of protected activity, such as complaining to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial.
Claims of retaliation can arise under many of the laws that the WHD administers, including the Fair Labor Standards Act, the Family and Medical Leave Act, the Migrant and Seasonal Agricultural Worker Protection Act, e H-1B, H-1B1, and E-3 Visa Programs, the Consumer Credit Protection Act, and more.
Much of this is old hat for you HR-compliance nerds. But I did catch a few examples of retaliation that may surprise you.
For example, did you know that the person who retaliates does not need to be an employer? Plus, the employee who filed a complaint or engaged in any other protected activity does not need to be an employee of that “person.”
For example, courts have found an employer’s agent liable for retaliation, such as outside counsel.
The FLSA’s anti-retaliation protections may also apply in situations with no current employment relationship between the parties. Suppose a company gives a bad reference because a former employee filed a complaint or cooperated in an investigation. That person may file a retaliation complaint with WHD or may file a private cause of action seeking appropriate remedies including, but not limited to, employment, reinstatement, injunctive relief, lost wages, and an additional equal amount as liquidated damages.
Finally, did you know that employers who willfully violate the FLSA may be prosecuted criminally and fined, imprisoned for not more than six months, or both?
It may make you think twice about intentionally (or recklessly) misclassifying workers as exempt to avoid paying overtime.
The Bulletin is only 18 pages — cheaper than a cup of coffee to get your blood flowing this morning.