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eTrends - Department of Labor Issues New Fact Sheets on Retaliation

01.18.2012

The United States Department of Labor ("DOL") recently published three new fact sheets summarizing and clarifying prohibitions on employer retaliation. These fact sheets address retaliation under the Fair Labor Standards Act, the Family and Medical Leave Act and the Migrant and Seasonal Agricultural Worker Protection Act. The fact sheets are posted on the DOL's website and are summarized below.

Fact Sheet #77A: Prohibiting Retaliation under the Fair Labor Standards Act

Under the Fair Labor Standards Act ("FLSA"), it is unlawful for any person to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Fair Labor Standards Act], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C. § 215(a).

There need not be a current employment relationship in order for the retaliation protection to apply – employees are protected from retaliation by a former employer. Protection from retaliation extends to employee complaints made either orally or in writing.

Fact Sheet #77B: Protection for Individuals Under the FMLA

Under the Family and Medical Leave Act ("FMLA"), it is unlawful for an employer to retaliate against an individual for exercising his or her rights or participating in any matter protected under the FMLA. 29 U.S.C. § 2615; 29 C.F.R. § 825.220. Examples of prohibited conduct include discouraging an employee from using FMLA leave, refusing to authorize FMLA leave for an eligible employee, manipulating an employee's work hours to avoid FMLA responsibilities, and using an employee's request for or use of FMLA leave as a negative factor in employment actions.

Fact Sheet #77C: Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act

The Migrant and Seasonal Agricultural Worker Protection Act ("MSPA"), 29 U.S.C. 1801, et seq., applies to agricultural employers, agricultural associations, and farm labor contractors who furnish, employ, solicit, recruit, hire, or transport one or more migrant or seasonal agricultural workers and provides basic protections to such workers. Additionally, the MSPA provides that each person who owns or controls a facility or real property that is used for housing migrant agricultural workers must comply with federal and state safety and health standards.

Under the MSPA, it is unlawful for any person to "intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause, filed any complaint or instituted, or caused to be instituted, any proceeding under or related to [the MSPA], or has testified or is about to testify in any such proceedings, or because of the exercise, with just cause, by such worker on behalf of himself or others of any right or protection afforded by [the MSPA]." 29 U.S.C. § 1855(a).

The number of retaliation claims by employees continues to increase. Employers should have strong anti-retaliation policies and be aware that taking any adverse action against an employee who exercises his protected rights can give rise to a claim of retaliation.

Please contact Susan Parrott with any questions.

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Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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