DOL Guidance Addresses Prohibited Retaliation under FMLA

On March 10, 2022, the Wage and Hour Division (WHD) of the DOL published a Field Assistance Bulletin (FAB) (No. 2022-02) to provide guidance regarding worker protections against retaliation under the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and the Immigration and Nationality Act (INA).

Anti-retaliation provisions protect workers who complain to the government or make inquiries to their employers about violations of the law without fear that they will be terminated or subject to other adverse actions as a result.

Anti-Retaliation under the FMLA

The FMLA applies to all public agencies and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or proceeding calendar year. Along with other requirements, the FMLA prohibits employers from discharging or in any other way discriminating against any person for opposing or complaining about any unlawful practice under the FMLA. For instance, the following employer’s actions are prohibited: an employer’s refusal to grant FMLA leave; discouraging an employee from taking FMLA leave, or manipulation by an employer to avoid its FMLA responsibilities (e.g., changing essential functions of the job to prevent an employee from taking a leave). Unlawful discharge includes constructive discharge where an employer’s actions are in response to an employee exercising his or her FMLA rights, making the employee’s work situation so intolerable that a reasonable person would quit or resign.

The FAB illustrates when no-fault attendance policies under the FMLA would violate the law using two examples:

Example 1: An employee receives negative attendance points under the employer’s no-fault attendance plan while he was taking time off to care for his daughter, who was recovering from her surgery. In response, the FAB states that the FMLA’s anti-retaliation provisions prohibit an employer from counting FMLA leave days under no-fault attendance policies, and the employer must remove the negative attendance points from the employee.

Example 2: An employee used FMLA leave to take a few days off from work because her migraines prevented her from working. When she returns to work, her work hours are reduced in half. In response, WHD requires the employer to restore her previous work schedule and the employer to pay her an amount equivalent to her lost wages in liquidated damages.

For the guidance that applies to other laws, please refer to FAB 2022-02.

Employers who are subject to FMLA or other related laws (detailed in the FAB) should be aware of the recent guidance to avoid taking prohibited actions.

DOL Field Assistance Bulletin No. 2022-02 »