US DOL Field Assistance Bulletin Protecting Workers from Retaliation

The Biden Administration continues to increase administrative agency enforcement initiatives.

In a recent press release, the United States Department of Labor’s Wage and Hour Division (“WHD”) announced that it now offers new resources “to help combat employer retaliation against workers who exercise their legal rights.” One of those resources is a Field Assistance Bulletin on “Protecting Workers from Retaliation” (“Bulletin”).

Unlike many other sub-regulatory publications issued by the WHD, this Bulletin provides more of a reminder — perhaps even a warning — that the WHD does not tolerate workplace retaliation, and “will use every enforcement tool available” to address it.

The WHD is responsible for administering and enforcing a significant number of federal laws that set basic labor standards, including the Fair Labor Standards Act, the Family and Medical Leave Act, certain provisions of the Immigration and Nationality Act, Executive Orders  establishing paid sick leave and the minimum wage for federal contractors, and the Consumer Credit Protection Act.

On April 21, 2022, about a month following the announcement of the Bulletin, the WHD issued another press release, this time announcing that it had successfully obtained a temporary restraining order against a New Jersey employer for alleged retaliation.

According to the Bulletin, retaliation may occur when an employer takes an adverse action in against employees who choose to exercise their legal rights or attempts to dissuade them from doing so. To prevail on a claim of unlawful retaliation, a claimant must demonstrate a causal connection between a protected activity and the adverse action. An employer’s actions may be found to be retaliatory — even if the employer took the action based on a mistaken belief that the employee participated in a protected activity. The WHD’s Bulletin provides examples of prohibited retaliation pursuant to the laws and Executive Orders subject to its enforcement authority.

The Bulletin underscores that employees may be protected from retaliation even if their complaint is based on a mistaken belief that there has been a violation of the their rights. In other words, compliant employers could still commit retaliation against a whistleblower, even if the whistleblower’s suspicions were incorrect or allegations of the employer’s wrongdoing are unfounded.

Finally, as we previously reported, importantly, the Bulletin describes the WHD’s interagency collaboration with other administrative agencies, including the U.S. Department of Labor’s Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the National Labor Relations Board.

The WHD has already started to ramp up its anti-retaliation enforcement. On April 21, 2022, the WHD announced that it had successfully obtained a temporary restraining order (“TRO”) against New Jersey employer Advantix Logistics Corp. after it “allegedly fired [and] threatened [an] employee who complained about shorted wages.” The TRO was issued by the United States District Court for the District of New Jersey, and was awarded pursuant to a complaint filed by the U.S. Department of Labor Office of the Solicitor, seeking “a permanent order enjoining Advantix and those acting on its behalf from violating the [Fair Labor Standards Act] by further retaliation, intimidation, harassment and other adverse action against employees who engage in protected activity. It also seeks compensatory and punitive damages for the” employee.

The WHD’s Bulletin and the action against Advantix Logistics Corp. are not-so-subtle reminders of the Biden Administration’s commitment to agency enforcement of employment laws. Employers should take proactive steps to avoid potential workplace retaliation through such measures as management training and careful review of current policies and practices.

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National Law Review, Volume XII, Number 125