The U.S. Department of Labor (DOL) released guidance on March 10 that gave specific examples of what constitutes unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and visa programs. The guidance shed more light on when no-fault attendance policies under the FMLA cross the line and violate the law.
FLSA
The DOL put forth several hypothetical situations to illustrate unlawful retaliation. Suppose "Nelson" worked as a cook at a restaurant and contacted the DOL's Wage and Hour Division confidentially to ask about overtime pay. He told another cook what he learned from the agency, and his co-worker told someone on the waitstaff. Later that day, their manager overheard two waitstaff employees talking about the call and fired Nelson.
Firing Nelson would be unlawful. The Wage and Hour Division would investigate, or Nelson could file a private cause of action seeking such remedies as reinstatement, lost wages and liquidated damages.
Liquidated damages are a multiplier of any back wages owed. "For every dollar of back wages owed, the FLSA includes provisions allowing for an additional dollar of damages to be added," said Michelle Anderson, an attorney with Fisher Phillips in New Orleans and Tampa, Fla.
In another example under the FLSA, "Aisha" was a new mother who worked for a call center. She used her lunch break to express milk and needed additional time to finish pumping before she was able to return calls at her...
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