The Employers’ Association – Human Resources Group
Legal Update – January 2012
By Peter J. Kok and Aliyya A. Clement
DOL Puts Spotlight On Retaliation To Ring In The New Year
The Department of Labor’s Wage and Hour Division is arming employees with a
few helpful tips to ring in the new year – in the form of fact sheets that remind individuals about
their right to be free from retaliation under the Fair Labor Standards Act (FLSA) and the Family
and Medical Leave Act (FMLA). While the fact sheets do not necessarily contain much new
information about retaliation under their respective Acts, they may well prompt employees to
start looking for retaliation claims – whether a valid one exists or not. This article will give
employers a brief overview of these types of retaliation so that they are prepared for whatever
may come their way as they kick off the new year.
Retaliation Under The FLSA
Section 15(a)(3) of the FLSA states that it is a violation 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 this
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.”
It is important to remember that employees are protected regardless of whether
the complaint is made orally or in writing. Not only are complaints made to the Wage and Hour
Division protected, but many courts have ruled that internal complaints to an employer may also
be protected. Further, because Section 15(a)(3) prohibits “any person” from retaliating against
“any employee,” the protection applies to all employees of an employer, regardless of whether
the employees and/or the employer is covered by the FLSA. This also means that the retaliation
provision applies in situations where there is no current employment relationship – for example,
an employee may be protected from retaliation by a former employer.
If an employee feels he or she has been “discharged or in any other manner
discriminated against” in violation of the FLSA’s retaliation provision, he or she may file a
complaint with the Wage and Hour Division or file a private cause of action seeking remedies
including, but not limited to, employment, reinstatement, lost wages and an additional equal
amount as liquidated damages.
For additional information, see U.S. Department of Labor Fact Sheet #77A:
Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA)¸ issued December 2011:
Retaliation Under The FMLA
Section 105 of the FMLA and Section 825 of the FMLA regulations prohibit the
An employer is prohibited from interfering with, restraining, or denying
the exercise of, or the attempt to exercise, any FMLA right;
An employer is prohibited from discriminating or retaliating against an
employee or prospective employee for having exercised or attempted to
exercise any FMLA right;
An employer is prohibited from discharging or in any other way
discriminating against any person, whether or not an employee, for
opposing or complaining about any unlawful practice under the FMLA;
All persons, whether or not employers, are prohibited from discharging or
in any other way discriminating against any person, whether or not an
employee, because that person has: filed any charge, has instituted or
caused to be instituted, any proceeding under or related to the FMLA;
given, or is about to give, any information in connection with an inquiry or
proceeding relating to any right under the FMLA; or testified, or is about
to testify, in any inquiry or proceeding relating to a right under the FMLA.
Any violation of the prohibited activities listed above constitutes interfering with, restraining, or
denying the exercise of rights provided by the FMLA.
An individual who feels that he or she has been wrongfully retaliated against
under the FMLA may file a complaint with the Wage and Hour Division of the U.S. Department
of Labor. If the Department is unable to “satisfactorily resolve” the dispute, it may bring an
action in court to compel compliance. Further, an employee may also be able to bring a private
civil action against an employer for violations. Importantly, allegations must generally be raised
within two years from the date of the violation.
For additional information, see U.S. Department of Labor Fact Sheet #77B:
Protection for Individuals Under the FMLA)¸ issued December 2011:
What Does This Mean For Employers?
While the fact sheets do not highlight any substantive changes to the law of
retaliation under the FLSA or the FMLA, they do send a message to employees that the
Department of Labor is eager and willing to investigate any claims of possible retaliation. That,
coupled with the fact that retaliation claims are on the rise, means that employers need to be
prepared. This means reviewing and/or revising any existing retaliation policies, training
managers and supervisors to handle possible claims of retaliation, and ensuring that unlawful
retaliation is not tolerated in any form. There is no better time than now to make sure that your
policies and practices are not placing you at risk for an unlawful retaliation claim in 2012.
If you have any questions regarding this article or other matters, please contact the
authors for more information: Peter J. Kok (616) 831-1724; firstname.lastname@example.org or Aliyya
A. Clement (616) 831-1712; email@example.com.