New Labor Department Retaliation Guidance Reminder Of Retailiation Risks


U.S. employers should exercise care to guard against potential retaliation claims brought by current or former employees under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA) the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and other federal employment laws.

Retaliation claims have emerged as a leading source of liability for U.S. employers.  Most U.S. labor and employment laws, as well as many other statutes prohibit companies from retaliating against employees for exercising protected rights under the law’s provisions.  Challenges and risks in managing this growing source of liability has been further fueled by the U.S. Supreme Court’s ruling in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, that the anti-retaliation provisions of Title VII extend to employees who take part in investigations even if that employee does not file a complaint of retaliation. See Supreme Court Decision May Open Doors To More Retaliation Claims

In light of these risks, U.S. employers should tighten employee discipline and other practices and documentation to guard against retaliation claims.  

In undertaking these risk management efforts, employers should take advantage of the insights given from three new fact sheets addressing retaliation published by the U.S. Department of Labor Wage and Hour Division (WHD) on December 23, 2011:

  • Fact Sheet #77A, Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at here;
  • 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 and is available on the WHD website at here; and
  • Fact Sheet #77C, Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), provides general information concerning MSPA’s prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under or related to MSPA and is available on the WHD website at here.

The guidance comes as the WHD is proposing to adopt new rules that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care services for the elderly and infirm.  WHD’s focus on home health workers is an extension of its expanded regulation and enforcement efforts targeting a broad range of health care industry employers.  See Notice of Proposed Rulemaking (NPRM) to revise the companionship and live-in worker regulations under the Fair Labor Standards Act (FLSA). 

The proposed tightening of regulations for home health workers follows a general toughening by WHD of its regulation and enforcement of wage and hour laws in the health care and many other industries.  See, e.g. Home health care company in Dallas agrees to pay 80 nurses more than $92,000 in back wages following US Labor Department investigation; US Department of Labor secures nearly $62,000 in back overtime wages for 21 health care employees in Pine Bluff, Ark.; US Department of Labor initiative targeted toward increasing FLSA compliance in New York’s health care industry; US Department of Labor initiative targeted toward residential health care industry in Connecticut and Rhode Island to increase FLSA compliance; Partners HealthCare Systems agrees to pay 700 employees more than $2.7 million in overtime back wages to resolve U.S. Labor Department lawsuit; US Labor Department sues Kentucky home health care provider to obtain more than $512,000 in back wages and damages for 22 employees; and Buffalo, Minn.-based home health care provider agrees to pay more than $150,000 in back wages following US Labor Department investigation.

Employers should take steps to manage compliance and other exposures under these and other federal laws, including those for engaging in prohibited retaliation.  Employers should both confirm the adequacy of their practices under existing rules, as well as take steps to decrease exposures to retaliation claims.

For Help With Compliance & Risk Management and Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions under these or other laws, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at www.solutionslawpress.com

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press. All other rights reserved.

*WHD’s announcement of the planned rule notes that this draft shared December 15 remains subject to change before formally published in the Federal Register.

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