It seems that allegations of different types of discrimination or employer wrongdoing run in cycles. There was a time when we saw that claims of racial and ethnic discrimination were in the forefront. Then, it seemed that age discrimination claims were the biggest category. Then, disability claims came to prominence. The last few years, I see a distinct rise in claims of “retaliation” and “whistleblowing.” Well, the USDOL has now latched onto this trend and memorialized it in a new (March 10, 2022) Field Assistance Bulletin No. 2022-02: Protecting Workers from Retaliation (“FAB”).

The FAB outlines the various laws enforced by the Wage Hour Division and lists a number of adverse actions, beyond “just” a discharge, that can constitute “retaliation.” This is quite important because it demonstrates a wide-sweeping approach and embracing of, literally, any kind of ostensibly adverse action, some of which may not be readily apparent as possibly rising to the level of retaliation. These adverse actions include termination and any disciplinary action, but they can also include reducing hours, eliminating overtime for the employee(s), demoting someone, or compelling/coercing employees to return, or kick back, monies that were found to be owed to them by the USDOL. In other words, the FAB targets the more subtle forms of retaliation (e.g. exclusion from meeting, change to an undesirable shift) as well the more obvious and “traditional” types of retaliation.

The FAB adopts the...

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