Hunton Employment & Labor Perspectives

The U.S. Department of Labor provides general information and compliance guidance regarding numerous wage, hour, employment, and labor laws via “fact sheets” which are available to employees, employers, and the general public. Fact sheets can serve as helpful reference and compliance material for employers. On December 23, 2011, the DOL issued three new fact sheets on the issue of unlawful retaliation.  These newly released fact sheets address retaliation under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Workers Protection Act (“MSPA”).

Fact Sheet #77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA) provides information concerning the FLSA’s prohibition of retaliation against any employee who has “filed any complaint” or cooperated in an investigation under the FLSA.  Fact Sheet #77A explains that employees are protected from retaliation under the FLSA when making a complaint orally or in writing.  It also recognizes that not only are complaints made to the DOL Wage and Hour Division protected, but that most courts have ruled that internal complaints to an employer are protected as well.  Additionally, Fact Sheet #77A explains that the FLSA’s prohibition against retaliation applies to all employees of an employer, even in those instances in which the employee’s work and the employer are not covered by the FLSA. Further, the fact sheet provides that the FLSA’s retaliation prohibition applies even where there is no current employment relationship between the parties. For example, it protects an employee from retaliation by a former employer.

Fact Sheet #77B: Protection for Individuals under the FMLA outlines the FMLA’s prohibition of retaliation against an individual for exercising his or her rights or participating in matters protected under the FMLA.  The new fact sheet also gives the following examples of prohibited conduct: refusing to authorize FMLA leave for an eligible employee, discouraging an employee from using FMLA leave, manipulating an employee’s work hours to avoid FMLA responsibilities, using an employee’s FMLA request as a negative factor in employment actions, and counting FMLA leave under “no fault” attendance policies.

Fact Sheet #77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provides information concerning the protections and enforcement procedures under the MSPA.  The MSPA protects migrant and seasonal agricultural workers and establishes employment standards related to wages, housing, transportation, disclosures, and recordkeeping. It also requires farm labor contractors to register with the U.S. DOL. The MSPA prohibits discrimination or retaliation against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under the MSPA.

Full versions of the new Fact Sheets may be found at the following links:
Fact Sheet #77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA)
Fact Sheet #77B: Protection for Individuals under the FMLA
Fact Sheet #77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA)