Department of Labor issues retaliation fact sheets
Posted on 12/27/2011 at 11:20 AM by Jill Jensen-Welch
On December 23, 2011, the U.S. Department of Labor issued three new Fact Sheets about retaliation prohibitions. The Fact Sheets discuss protections from 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'). The FLSA Retaliation Fact Sheet incorporates the holding from the U.S. Supreme Court's March 2011 decision in Kasten v. Saint-Gobain. There, the Court recognized retaliation protections for verbal complaints made to an employer about possible FLSA violations. The FMLA Retaliation Fact Sheet provides examples of retaliatory conduct, including manipulating work hours to avoid FMLA responsibilities. One can only hope and assume that example does not diminish the employee's obligation to make a reasonable effort to arrange intermittent or reduced schedule leave for treatments 'so as not to unduly disrupt the employer's operations,' as the DOL regulations provide in 29 C.F.R. § 825.203, and the employer's right to transfer an employee to an alternative position during intermittent or reduced schedule leave, as the DOL regulations also provide in 29 C.F.R. § 825.204. Another example in the FMLA Retaliation Fact Sheet is discouraging an employee from using FMLA. Unfortunately, it is relatively common for some employers to discourage the use of FMLA leave to avoid the paperwork and administrative hassles, to try to evade the protections the FMLA provides to employees, or for other reasons. This Fact Sheet reinforces this as an unacceptable approach. The MSPA Retaliation Fact Sheet includes information about which employers and workers are covered by the MSPA, as well as its retaliation protections. The three Fact Sheets also highlight the differences in the statutory and regulatory language under each law's retaliation protections. This has few practical implications in the workplace, but can be important for lawyers in litigation.
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