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Employee’s Rights with Employer’s Retaliation

The U.S. Department of Labor Wage and Hour Division (WHD) recently published new fact sheets covering (i) unlawful retaliation under the Fair Labor Standards Act (FLSA) which governs worker wages, hours of work and overtime, and (ii) unlawful retaliation under the Family and Medical Leave Act (FMLA).

Wage and Hour Retaliation: Fair Labor Standards Act (FLSA)

The FLSA 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.”   New Fact Sheet number 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), states that complaints do not have to be in writing and may be made orally.   Complaints made to the Wage and Hour Division are protected, and most courts have ruled that internal complaints to an employer are also protected.

The prohibition of retaliation states that the prohibition also applies in situations where there is no current employment relationship between the parties; for example, it protects an employee from retaliation by a former employer.  The fact sheet explains that an aggrieved individual may file a complaint with the US Department of Labor or pursue a private cause of action in court.

Family Medical Leave (FMLA) Retaliation

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The FMLA further prohibits employers from retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA, including the following:

Section 105 of the FMLA and section 825.220 of the FMLA regulations prohibit the following actions:

    • An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.
    • An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.
    • An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.
    • All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has —
      • Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
      • Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
      • Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

Examples of Family Medical Leave (FMLA) Retaliation

Examples of prohibited conduct include:

    •    Refusing to authorize FMLA leave for an eligible employee,
    •    Discouraging an employee from using FMLA leave,
      • Manipulating an employee’s work hours to avoid responsibilities under the   FMLA,
      • Using an employee’s request for or use of FMLA leave as a negative factor in   employment actions, such as hiring, promotions, or disciplinary actions, or,
    •    Counting FMLA leave under “no fault” attendance policies.

New Fact Sheet # 77B: Protection for Individuals under the FMLA, provides general information concerning the Family and Medical Leave Act’s (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA. The fact sheet states that the FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and 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.

Leave a Public Comment

  • Anonymous
    January 10, 2013, 4:39 pm

    (Salary professional) Small Business (20-25) has FMLA as benefit in Policy Manual, they offered FMLA leave for my Cancer surgery, after 4 weeks returned 1/2 time per Dr. recommendation. After 4 more weeks when I requested full time and have not been reinstated and am still receiving 1/2 monthly salery. As a “benefit”, don’t they have to comply with the law? Thank you.