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DOL issues new guidance to employers warning about retaliation

published in McAfee & Taft EmployerLINC | April 18, 2022

Retaliation continues to be at the top of the federal government’s priority list.  Last month, the U.S. Department of Labor issued a new field assistance bulletin entitled Protecting Workers from Retaliation, which addresses worker protections from retaliation under laws that the Wage & Hour Division enforces.  The DOL pledged to “use every tool available” to “uphold the rights of workers to identify violations of the law without fear of termination or other threats to their reputation, safety or livelihood.”  The DOL, EEOC and NLRB announced an initiative to join together to combat retaliation.

According to the DOL, retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes “adverse action” against an employee because they engaged in “protected activity.”  The DOL defines an adverse action as “any action that could discourage an employee from making a complaint or expressing concern about a possible violation or engaging in protected activity, such as filing a complaint or cooperating in an investigation.”  A finding of retaliation also requires a causal connection between the protected activity and the adverse action.  It is important to note that more than half of all EEOC charges filed by employees or former employees in recent years contained allegations of retaliation.

The Wage and Hour Division of the DOL investigates employers to determine compliance with anti-retaliation provisions under several laws, including the Fair Labor Standards Act, Family and Medical Leave Act, and other federal equal employment opportunity laws.  The Biden Administration, through the DOL, has ramped up its enforcement efforts against employers and “will consider all remedies and sanctions available to protect workers and change behavior,” including injunctive relief and lost wages that resulted from the retaliation.

Practice pointers  

  • First, make sure your organization’s employment anti-retaliation policies are current and regularly reviewed by experienced employment counsel, clearly and frequently communicated, easy to understand, consistently enforced, and, importantly, provide a clear complaint process for anyone to use. 
  • Second, employers should provide regular training to supervisors, managers and employees on their commitment to equal employment opportunity and providing a workplace free from all forms of harassment, discrimination, retaliation or other unlawful conduct.  Importantly, leaders must understand the importance of following the employer’s complaint process and reporting procedures for any complaint or concern raised by an employee, customer, independent contractor, vendor, supplier, or other non-employee work contact. 
  • Finally, leaders must understand the importance of not taking adverse action against any employee who, in good faith, makes a complaint, raises a concern, or opposes an illegal or unethical practice of any type.