DOL Issues Fact Sheets on Retaliation

The Department of Labor’s Wage and Hour Division (WHD) has issued three new fact sheets on unlawful retaliation under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Fact Sheet number 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), briefly discusses the prohibitions, coverage and enforcement issues related to section 15(a)(3) of the FLSA, which makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” The fact sheet explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA’s retaliation protections extend to internal complaints as well.

In addition, the fact sheet states that all employees of an employer are protected by the FLSA’s retaliation provisions, including those instances in which the employee’s work and the employer are not covered by the Act. Moreover, the section 15(a)(3) protections extend to employees who are no longer in an employment relationship with the employer. With respect to enforcement, the fact sheet explains that an aggrieved individual may file a complaint with the agency or pursue a private cause of action in court.

Fact Sheet # 77B: Protection for Individuals under the FMLA, outlines Section 105 of the FMLA and section 825.220 of the FMLA regulations, which prohibit employers from retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA, and provide examples of prohibited conduct. The fact sheet points out that the FMLA applies to, among other entities, private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. Retaliation complaints under section 105 can be raised within two years from the date of violation.

Finally, the new Fact Sheet # 77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), discusses the protections and enforcement procedures under the retaliation provisions of the MSPA, which establishes employment standards related to wages, housing, transportation, disclosures, and recordkeeping requirements for migrant and seasonal agricultural workers, and mandates that farm labor contractors register with the U.S. Department of Labor. Specifically, Section 505(a) of MSPA makes it a violation for any person to:

intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause, filed any complaint or instituted, or caused to be instituted, any proceeding under or related to this Act, or has testified or is about to testify in any such proceedings, or because of the exercise, with just cause, by such worker on behalf of himself or others of any right or protection afforded by this Act.

DOL fact sheets on other wage and hour issues can be found here.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.