April 18 Tip of the Week

“Damned if you do, damned if you don’t”

On March 10, 2022, the acting administrator for the United States Department of Labor, Wage and Hour Division, issued an eighteen-page field assistance bulletin entitled “Protecting Workers from Retaliation.”  This bulletin, which was directed to regional directors, regional administrators, and enforcement directors, spells out the various laws enforced by the Wage and Hour Division and underscores the impact of retaliation on employees. 

The bulletin reminds the recipients of the agency’s obligation to employees and the impact that retaliation can have on an employee’s willingness or ability to advocate for themselves:

Anti-retaliation protections safeguard the basic rights afforded to workers in the United States.  These protections hold the promise that workers can complain to the government or make inquiries to their employers about violations of the law without fear that they will be terminated or subject to other adverse actions as a result. Too often, retaliation, or the fear of it, prevents the most vulnerable workers including those making the lowest wages, immigrant workers, workers of color, and women from exercising their workplace rights and ensuring they are paid the wages they are owed and afforded other protections under the law. Accordingly, it continues to be of paramount importance that WHD fully enforce the anti-retaliation provisions of the laws it administers to prevent and stop retaliation as early as possible.

Field Assistance Bulletin, No. 2022-02, “Protecting Workers From Retaliation”, p.1. 

In addressing the issue of retaliation, the acting administrator broadly defined retaliation: 

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity. Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial.

Id., p. 2.  The bulletin also expressly recognized that retaliation can occur even when an employee has not engaged in protected activity but the employer or its agent believes that they did: 

An employer’s actions may constitute retaliation under a law that WHD enforces

even if the employer takes action based on a mistaken belief that the worker participated in a protected activity. For instance, if an employer suspects that a worker filed a complaint with WHD and terminates the worker’s employment, the employer engaged in retaliation even if the worker never actually filed a complaint. Here, the adverse action is caused by the employer’s belief, even if mistaken, that the worker engaged in a protected activity.

Id., p. 3. 

The field bulletin also broadly defines retaliation as nearly any action that an employee perceives as adverse: 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. … Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee.

Id., p. 2.  The bulletin further states that an employee who voluntarily resigns because they believe that they have been subject to an adverse action by the employer can be viewed to have been constructively discharged.  If it is found that “the employer deliberately created working conditions that were so difficult or unpleasant that a reasonable person in similar circumstances would have felt compelled to resign,” the employer will be viewed to have retaliated against the employee and constructively discharged them.  See, Field Assistance Bulletin 2022-02, p. 15. 

Employers who have been found to retaliate against employees who have engaged in protected activity are subject to the following: 

Upon finding a violation, WHD may pursue administrative or legal remedies, including the recovery of lost wages; reinstatement or front pay; assessment of liquidated damages and civil money penalties; and additional remedies, such as compensatory and punitive damages, dependent on the statute at issue and the facts of the particular case.

Id.  The laws enforced by the Wage and Hour Division contain their own provisions regarding damages and other enforcement actions; however, the list above is illustrative of the tools available to the division when taking action against an employer for retaliation. 

What does this field administrative bulletin mean for employers? 

This bulletin is an example of how the enforcement agencies are increasing their advocacy for employees and signals the willingness of the Wage and Hour Division to support employees in their claims against employers.  It is also a reminder to employers about the importance of civility and documentation when dealing with employees.  While the stated intent of the bulletin is commendable, unintended consequences can result from this type of enforcement activity.  Rather than providing vulnerable employees with the protections they need to advocate for themselves, this broad approach to retaliation can be used by problem employees to protect themselves from their misconduct and questionable work activities. 

An employee who believes they have been retaliated against will go to the Wage and Hour Division to seek assistance and it is up to the employer to disprove the employee’s allegations.  Similarly, a marginal employee who has poor attendance or a poor attitude and who feels that they may be subject to impending discipline or termination may file a complaint in an effort to protect themselves and their job.  Many of these claims, valid or not, will involve supervisors and managers who are often frustrated by the employees who are bringing the claims. One stray negative comment from a supervisor or a manager could give rise to a retaliation determination, even where there was no protected activity and, in fact, there was misconduct or poor job performance.  In many instances, these issues arise when an employee has been given a great deal of leeway, takes advantage of that leeway, and then an attempt is made to reign in their conduct. 

Employers can avoid these claims or minimize their risk of successful retaliation claims by properly training their supervisors and managers regarding their obligations under the law and by maintaining open lines of communication with employees. Properly disciplining employees, through coaching and direct and timely feedback is also important.  Providing employees with a constructive means of bringing forward complaints internally may avoid complaints to outside agencies.  Employers should also ensure that the workplace is respectful and collegial.  Supervisors who have poor communication skills or who are quick to criticize or be disrespectful of their direct reports or others in the workplace should be counseled and their behavior corrected.  The most effective way to avoid complaints is to ensure that all employees feel respected and heard in the workplace. 

myHRcounsel can assist you in training supervisors and developing policies that clearly set forth the expectation of a positive working environment.  We can also assist you in training your supervisors and managers with regard to best practices for discipline and documentation.