On March 10 the U.S. Department of Labor issued Field Assistance Bulletin No. 2022-02: Protecting Workers from Retaliation (“FAB”).
In the FAB, the DOL identified several actions that can constitute retaliation. This is significant because the FAB shows that the DOL intends to be very broad in its application of the retaliation provisions.
For example, the adverse actions listed in the FAB include the usual termination and formal disciplinary actions, but it also includes other, not-so-obvious things such as denying overtime, reducing hours, exclusion from meetings, assignment to a less desirable shift and requiring employees to “kickback” money that the DOL had previously found were owed to them.
The FAB also expands the scope of who may commit actionable retaliation to include almost anyone acting to further the employer’s interests, whether employed by the employer or not.
The FAB also makes it clear that protections against retaliation do not cease when one’s employment ceases; the statutes protect persons who are no longer employed by the employer.
Lastly, the FAB again emphasizes the Memorandum of Understanding between the DOL and the National Labor Relations Board entered in January of this year. As I have written previously, under the MOU, the DOL and the NLRB will share information, and an employee’s complaint of retaliation to the DOL may also lead to an investigation by the NLRB. Bottom Line: More so than ever, it is important that employers take a studied look at how they respond to employees who engage in protected activity. What an employer calls a paid leave while it completes an investigation may well be seen as an embarrassing suspension by the complaining employee and the DOL.