New DOL Fact Sheet on Retaliation

As tempting as some business managers and owners seem to find it to exact revenge on employees who’ve filed wage and hour complaints against their employer, retaliation is always a bad idea. It may be human nature, it may even feel satisfying, but it’s bad business. As in, it’s illegal. And it can get you in a whole lot of hot water.

I see all the time lawsuits filed by employees claiming they filed a wage complaint, and their employer retaliated against them. You have to be very careful if you discipline, transfer, demote, lay off or initiate any other “adverse employment action” against an employee who’s filed a complaint under the Fair Labor Standards Act (FLSA).

It’s not just formal written FLSA complaints you need to be concerned about, either. Recently, in the case of Kasten v. Saint-Gobain Performance Plastics Corp., the U.S. Supreme court held that an employee could sue for retaliation even if the original complaint was only made verbally and never put in writing. It also usually doesn’t matter if the complaint was made to the state or federal Department of Labor or if it was only communicated internally to company management.

The Department of Labor has issued a new Fact Sheet on retaliation that seeks to answer some common questions about the topic. Even if your employees haven’t filed any wage and hour complaints, I urge you to review this Fact Sheet. It won’t take much time — it’s short, sweet and to the point. And the information in there is incredibly important to know.

Here are a few ideas to help you protect yourself against charges of retaliation:

  • Fully document every adverse employment action, including the reasons why the action was taken. (And — it goes without saying — don’t retaliate. You’re on much firmer ground if the real reason for the adverse action isn’t to take revenge for the employee filing a complaint.)
  • Be consistent in your treatment of employees. When one employee commits an infraction and gets away with a slap on the wrist, but another who does a similar thing gets fired, you’re asking for a lawsuit. Especially if the one who gets fired has previously complained about a wage and hour issue.
  • If questioned about why a particular employment action was taken, keep your answers short and consistent. When your reasons change from one telling of the story to the next, it starts to look suspiciously like the “reasons” are merely pretext. Depending on who’s asking and under what circumstances, it may be better to let your attorney do the answering for you.
  • When in doubt, consult your employment law advisor before you take any action.

Have you ever been tempted to take revenge on an employee who complained? Or have you been the victim of retaliation?

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