When it comes to things like minimum wage, overtime, and Family and Medical Leave Act (FMLA) leave, there are multiple different ways that your employer can violate the law. First, there’s the violation itself, in which your employer denies you what the statute demands. Additionally, though, many cases involve retaliation, where an employer punishes an employee for asserting (or, in some instances, merely inquiring about) their statutory rights. An experienced Atlanta employment lawyer can help you determine if retaliation occurred in your case and how to pursue relief for that retaliation.
Last month, the U.S. Labor Department’s Wage and Hour Division (WHD) issued a new guidance document focusing on the issue of retaliation. Specifically, the bulletin placed a spotlight on instances of retaliation against workers who assert their rights under the FMLA, the Fair Labor Standards Act (FLSA), and other labor laws.
As the bulletin noted, legal protections against retaliation are necessary to safeguard workers’ rights. A worker forced to choose between being illegally underpaid or having no job at all reasonably might choose the former over the latter. As a result, “it continues to be of paramount importance that WHD fully enforce the anti-retaliation provisions of the laws.”
So, what does this kind of retaliation look like? The bulletin offered several examples. In one, a restaurant cook made a confidential call to WHD about possible overtime violations. The cook told a coworker and the “news” eventually made its way to a manager, who then fired the cook. The cook was engaging in protected activity under the FLSA and, by firing him for engaging in that protected activity, the employer violated anti-retaliation laws.
Alternately, there’s the oft-occurring issue of new mothers in the workplace. The WHD’s example focused on a new mom in a call center who expressed breast milk during her lunch break. The process of pumping, cleaning up, and returning to work extended beyond the bounds of the woman’s lunch break period, about which her supervisor complained. When the mother asked for another pumping break later in her shift, the supervisor sent her home without pay. The mother’s request for an additional break was a protected activity and her supervisor’s sending her home without pay would be illegal retaliation, according to the WHD.
FMLA, Retaliation, and Workplace Attendance Policies
When it comes to the FMLA and retaliation the issues can be somewhat different. Many times, the retaliation can tie into the enforcement of the employer’s attendance policies. This can include employers with “no-fault” or occurrence-based attendance policies. Any employer whose policies include punishment for exceeding a set number of absences or occurrences cannot count the use of approved FMLA leave as an absence/occurrence. For example, say that a father was approved to use FMLA leave to care for his child who was receiving cancer treatments. If the father missed work on January 3rd, February 11th-12th, and March 22nd (due to his child’s health needs) and the employer assessed three “occurrences” against him, that could be an actionable instance of retaliation.
The WHD also offered the example of a hotel front desk clerk with chronic migraines (for which she was approved to use FMLA leave.) In four months, she missed six days across three absences due to migraines. When she returned after the third absence, her manager cut her hours in half, criticizing her for failing to “show up every day.” That also could be FMLA retaliation.
In most of these examples, the workers appeared to have strong cases of FMLA or FLSA violations. Keep in mind, though, that you can still have a winning case of retaliation even if the underlying FMLA or FLSA-related issue was not a violation at all. Say, for example, the cook in the first example learned from the WHD that the employer’s pay policies were completely legal and compliant with the statutes. The manager’s act of firing the cook would still be illegal retaliation if the cook could prove that the manager took the action because of the cook’s having contacted the WHD.
Various laws like the FMLA and the FLSA give workers certain statutory rights. Generally, employers may not take adverse action against their employees who invoke those rights or inquire about them. When an employer does, that’s retaliation and against the law. The skilled Atlanta employment retaliation attorneys at the law firm of Parks, Chesin & Walbert are here to help workers who have been harmed by this kind of illegal employment practice. We’ve successfully handled countless retaliation cases on behalf of a wide array of clients. Contact us through this website or at 404-873-8048 to schedule a consultation about your situation.