By Tracey I. Levy

Retaliation is a thorny problem.  There are a multitude of laws at the federal, state and local level that are intended to protect employees’ rights in the workplace.  But those protections amount to little if employees are unable to assert those rights without jeopardizing their standing with their employer or suffering other adverse consequences.  As a result, virtually every law granting employees legal protections in the workplace additionally prohibits employers (and sometimes others) from retaliating against employees who assert their legal rights.

Broader Standards and Greater Publicity Warrant Education

Early in my legal career, before the internet was widely known and used, the conventional wisdom was that we educated supervisors and managers on their obligation not to retaliate, specifically in response to complaints of harassment or discrimination, but in training sessions attended by the rest of the workforce, we did not talk too much about retaliation.  We did not want to give anyone any ideas on how to file a legal claim.  A seminal U.S. Supreme Court decision in 2007, Burlington Northern Santa Fe Railroad Co. v. White, adopted a broad definition of retaliatory behavior under Title VII, and the conventional wisdom changed as the floodgates started to open.  Last year, nearly 56 percent of all charges filed with the Equal Employment Opportunity Commission included a retaliation claim, whereas less than 30 percent of the charges filed before the Burlington Northern case had included such a claim.  Under the Burlington Northern decision, even conduct by coworkers, whether on or off the job, can give rise to a retaliation claim.  The only way to address that liability risk is by educating everyone in the workplace with regard to the prohibition against retaliation – what retaliation looks like, and what is expected of employees to prevent it.

This year, the U.S. Department of Labor (DOL) seems to have placed renewed emphasis on the subject of retaliation.  The Wage and Hour Division (WHD) issued a Field Assistance Bulletin, “Protecting Workers from Retaliation,” and a powerpoint presentation, “Unlawful Retaliation Under the Laws Enforced by the Wage and Hour Division” that clearly outline the numerous laws enforced by the Wage and Hour Division, the retaliation prohibitions contained in each of those laws, examples of the types of behavior that are considered retaliatory, and the remedial actions that the DOL will take in those situations.  The WHD has also launched a new antiretaliation website, dedicated to educating employees on what constitutes retaliation and how to contact the WHD for help.  These resources serve as a clear reminder to employees and employers of the breadth of the WHD’s enforcement powers and interests.

Just an Inference

It only takes an inference of retaliation for an employee to raise a claim that falls within the Wage and Hour Division’s remit, and that inference can be made whenever three elements come together.  First, the employee engages in protected activity by:

• raising a concern about a possible violation of legal rights
  • related to wages and reasonable break time under the Fair Labor Standards Act (FLSA),
  • job-protected time off under the Family and Medical Leave Act (FMLA),
  • immigration status under the H-2A or H-2B Visa programs,
  • worker treatment under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), or
  • rights as an employee of a federal contractor under the Executive Orders establishing and increasing the minimum wage (E.O. 13658 and E.O. 14026), or mandating paid sick leave (E.O.13706);
• asserting rights under the labor laws, such as by requesting time off under the FMLA, questioning an employer about wages withheld, or objecting to kickbacks of wages; or
• participating in the investigation of a complaint, whether by consulting with the DOL or cooperating in an investigation.

Second, the employee experiences anything by way of “adverse action,” including not just disciplinary action, termination, reduced work hours or pay, or shift changes, but also less favorable working conditions, threats or blacklisting by other employees.  Third, there is a causal connection between the protected activity and the adverse action, which can be established by direct references or simply by close timing between the first two elements.

Learning from Real World Examples

The WHD’s guidance includes real examples, some of which describe pretty egregious behavior on the part of employers, and some that warrant further reflection.  One example references a new mother who took longer than her allotted lunch break to pump breastmilk.  Her boss told her she could not use her meal break for “personal stuff,” and when she asked if she had a right to take another break for pumping later in the day, her boss sent her home for the rest of her shift without pay.

The WHD found the boss retaliated against the new mother in violation of the FLSA, which grants nursing mothers a legal right to take reasonable break time to express breast milk.  Without the legal protection for nursing, however, at least in a non-union environment a manager might classify the same behavior as tardiness followed by insubordination.  A manager would typically have lawful, discretionary authority to send the employee home for the day for that type of behavior.

Employers can learn from the WHD’s example.  It is not clear if the manager knew that the employee’s break time requests, when used for expressing breastmilk, fell within a legally protected category.  Make sure your managers do.  Managers need to be trained as to the scope of legal protections provided under wage and hour and other labor laws.  They need not be expert on all the intricacies of these laws but should have sufficient familiarity with their scope so as to know when to ask a question or get advice – before taking actions that may later be found retaliatory.

Monitor for the Subtler Behaviors

It can be hard to separate our feelings and emotions from the objective requirements of the anti-retaliation provisions.  If a manager, supervisor or even coworkers feel that an asserted complaint is exaggerated or unjustified, there may be an inclination to treat the complainant less favorably, criticize the complainant for having raised the complaint, or avoid the complainant altogether.  These very human responses fall within the range of subtler forms of retaliation.

Employers can rely on their systems and processes to monitor for (and thereby prevent) retaliatory changes in pay, disciplinary action, transfers, or outright termination.  But behaviors like less favorable working conditions, threats or blacklisting by other employees are more subtle, and cannot be monitored in the same fashion.  Rather, addressing these behaviors requires education and a shared sense of responsibility, building an organizational culture in which such forms of retaliation will be recognized, called out for what they are or appear to be, and promptly addressed.  There are no quick or easy fixes to establish that type of organizational culture, which is what makes retaliation such a thorny problem.  But employers that do not make the effort risk facing the full panoply of remedies that the WHD has so cogently outlined in its antiretaliation guidance.