On March 10, 2022, the U.S. Department of Labor (DOL) and its Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2022-02 (FAB). FAB focused on retaliation against employees who assert rights under a broad array of federal laws, including the FLSA, FMLA, the Migrant and Seasonal Workers, various work Visa programs (such as H-1B), and the Consumer Credit Protection Act.
The WHD, among other things, is charged with investigating employee and former employee complaints and DOL-directed investigation programs to ensure compliance with the federal laws under the jurisdiction of its agency. Many employers may be familiar with the WHD's mission to investigate complaints about the failure to pay statutory overtime, misclassification as an independent contractor, or failure to provide FMLA leave, and there have been several recent DOL announcements involving large settlements of failure to pay overtime and independent contractor misclassification complaints. The DOL's FAB serves to remind employers that a significant part of WHD's mission is the protection of workers who assert their rights and that the DOL will pursue all available remedies whenever it determines that retaliation has occurred.
Retaliation may take many different forms, whether readily apparent or more subtle, but at its foundation, it's an adverse action that discourages employees from raising a concern about a violation of the law or engaging in a protected activity in furtherance of the law's...
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