It seems that allegations of different types of discrimination or employer wrongdoing run in cycles. There was a time when we saw that claims of racial and ethnic discrimination were in the forefront. Then, it seemed that age discrimination claims were the biggest category. Then, disability claims came to prominence. The last few years, I see a distinct rise in claims of “retaliation” and “whistleblowing.” Well, the USDOL has now latched onto this trend and memorialized it in a new (March 10, 2022) Field Assistance Bulletin No. 2022-02: Protecting Workers from Retaliation (“FAB”).

The FAB outlines the various laws enforced by the Wage Hour Division and lists a number of adverse actions, beyond “just” a discharge, that can constitute “retaliation.” This is quite important because it demonstrates a wide-sweeping approach and embracing of, literally, any kind of ostensibly adverse action, some of which may not be readily apparent as possibly rising to the level of retaliation. These adverse actions include termination and any disciplinary action, but they can also include reducing hours, eliminating overtime for the employee(s), demoting someone, or compelling/coercing employees to return, or kick back, monies that were found to be owed to them by the USDOL. In other words, the FAB targets the more subtle forms of retaliation (e.g. exclusion from meeting, change to an undesirable shift) as well the more obvious and “traditional” types of retaliation.

The FAB adopts the agency’s expansive interpretation of what may constitute retaliation. In this regard, the FLSA also includes as violative retaliation by any “person.” What is significant about this is that the bad actor need not be only an employer or a Company. Indeed, under this broad definition the bad actor may be an outside agent, a “hired gun” of the employer or any outside individual or entity acting to further the illegal interests of the particular employer. Moreover, employers are forbidden from seeking to retaliate against people who no longer work for the Company.

Although it is already an established legal doctrine, the FAB notes that a “constructive discharge” is also considering a firing. This occurs when the employer makes an employee’s working conditions so bad that they (in theory) have no choice but to resign. So, although they officially “quit,” the employer instigated this resignation so it is a de facto discharge.

What is also of concern for employers is that the FAB again stresses a new emphasis on collaboration between federal agencies. It called attention to an earlier January 2022 Memorandum of Understanding (“MOU”) between it and the National Labor Relations Board. That MOU observed that employees who complain to the USDOL about the violation of their rights under that law also have engaged in conduct under the National Labor Relations Act that might also make them targets for retaliation. Thus, a single complaint filed with one agency may lead to investigations by other agencies.

The Takeaway

Retaliation cases succeed often because the timing is suspect or there is an easily traceable causal connection between the complaint or protest and the alleged adverse action. Also, I have found that employers tend to treat complaining employees disparately from other similarly situated workers and that also creates the perception of retaliation. So, put some space and distance between the instigating event and the adverse action.

Which I am sure will be for a good, business based, reason…