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DOL Guidance on FLSA and FMLA Retaliaton

April, 2022

DEPT. OF LABOR ISSUES GUIDANCE ON FLSA AND FMLA RETALIATION

The U.S. Department of Labor, (DOL), recently released guidance on what constitutes unlawful retaliation under the Fair Labor Standards Act, (FLSA), and the Family and Medical Leave Act, (FMLA) programs.

The guidance was issued in hypothetical situations that illustrate unlawful retaliation.

FLSA

The DOL used this example of unlawful FLSA retaliation:

An employee named “Nelson” was hired as a restaurant cook.  He contacted the DOL’s Wage and Hour Division confidentially to ask about overtime pay.  After he told another cook what he learned from the agency, the coworker told someone on the waitstaff.  When the manager overheard two waitstaff employees talking about Nelson’s call, he fired Nelson.

Nelson could file a lawsuit seeking reinstatement, lost wages and liquidated damages, which multiplies the back wages owed.

FMLA

The DOL used this example of unlawful FMLA retaliation:

An employee named “Jaime” took approved FMLA leave days to care for his 7 year-old daughter when she was in the hospital.  When Jaime returned to his job he received three negative attendance points for the days he used FMLA leave.  The employer had a “no-fault” attendance plan that gave employees points for every absence from work, regardless of the reason for the absence.  Employees could be disciplined after they received a certain number of points and could be fired if they received more than 10 points in a year.

Under the FMLA anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment decisions and may not count FMLA leave days under no-fault attendance policies.