The FLSA and FMLA can be complicated, and it’s not always obvious when employees are engaging in protected activity.
In order to cut down on FLSA and FMLA retaliation claims, the DOL recently issued guidance to help employers identify when an employee is protected under these acts.
Here’s a rundown of the DOL’s guidance.
The DOL provided several hypothetical situations to illustrate illegal FLSA retaliation.
In one, an employee who worked as a restaurant cook privately contacted the DOL to ask questions he had about overtime pay. This employee then shared what he learned with his co-workers.
But a manager overheard discussions about this call and fired the cook. The DOL said this would be unlawful retaliation, where the fired cook could sue for lost wages, damages and/or reinstatement.
The second FLSA scenario involved a working new mother who used her lunch break to pump breast milk. Sometimes, she needed extra time to finish before she could return to work. The employee’s boss told her she couldn’t take time past her lunch break for “personal stuff.” When the worker inquired about taking a second break to finish pumping later, she was sent home for the day without pay.
The DOL explains this is a violation under the FLSA, as employees are guaranteed reasonable break time in order to express breast milk. This employee was retaliated against for simply exercising her FLSA right.
The DOL also covered hypothetical FMLA retaliation scenarios. One example it gave involved FMLA-approved absences and employer attendance policies.
In this scenario, a father took approved time off from work to take his daughter to the hospital. However, when he returned, he received three “points” under the employer’s absence policy. When an employee reaches 10 points, they can be fired.
Giving an employee absence “points” when they’re out on approved FMLA leave is a violation. This leave is protected from retaliation.
Another example involved an employee who got unpredictable migraines and was granted intermittent FMLA leave to use when her condition flared up.
However, after using her leave a few times, when she returned to work her schedule had been reduced, her manager saying they needed employees who were reliable and consistently showed up.
This is an FMLA violation, and in the instance of a lawsuit, the DOL would require the employer to restore the employee’s original schedule.