Wage and Hour Division Guidance on Retaliation: What Employers Need to Know

March 23, 2022

Employers! Be on the lookout for a recently published Field Assistance Bulletin (FAB) written by the Wage and Hour Division (WHD) of the United States Department of Labor (DOL) concerning prohibited retaliation under federal law.



A FAB provides guidance in response to questions brought by those it addresses -in this case, questions brought by employers about retaliation under federal awl. This guidance is important for employers to better understand what retaliation is and how to avoid it, and costly litigation that can come with such a claim. 


You may be wondering, what is prohibited retaliation? Generally, it is when an employer takes an adverse action against an employee for engaging in a protected activity. An adverse action is any action that can discourage an employee from engaging in protected activity. This can either be done overtly, such as by terminating an employee or threatening termination, or subtly, such as through a reduction in work hours. A protected activity involves concerns raised or requests made internally or externally by an employee. Examples include making a complaint to a manager or supervisor, cooperating with a WHD investigation, or even requesting payment of wages.


To give you a better idea, here are specific examples of prohibited retaliation under the FLSA and FMLA:


FLSA:

Example: Timothy calls WHD to ask about overtime pay. When the employer overhears other staff members discussing Timothy’s call, the employer fires Timothy.


Discussion: Here, terminating Nelson for contacting (or suspecting Nelson of contacting) the WHD constitute prohibited retaliation, potentially triggering a WHD investigation.


FMLA:

Example: Heather uses three days of approved FMLA leave to care for her daughter as she recovers from surgery. Heather then receives negative attendance points upon her return to work, per the employer’s no-fault attendance policy, which allocates negative attendance points for each day an employee is absent, irrespective of the reason for the absence. Employees who accrue a threshold number of points are automatically disciplined.


Discussion: Because FMLA leave may not be counted under a no-fault attendance policy, the negative attendance points for the days Heather took FMLA leave would be removed from her employment record. 


If you are an employer, it is essential for you to understand exactly what prohibited retaliation is, what protected activities employees are entitled to, and what actions may be considered adverse. Most importantly, always seek legal counsel when presented with a retaliation claim.


For more information on the FAB guidance, or any other employment or labor law matter, please contact the attorneys at The Royal Law Firm LLP; (413) 586-2288. We know business matters!

Good Faith Engagement with ADA Accommodations Makes all the Difference

June 19, 2025
Dooley v. Nevada Gold Mines, LLC Leroy Dooley appealed the United States District Court for the District of Nevada decision to grant Summary Judgment in favor of the Defendants. Dooley alleged in his original suit that Nevada Gold Mines, LLC “NGM” violated The Americans with Disabilities Act (ADA) under failure to accommodate when they made the decision to terminate his employment after his medical leave ended. Before having to go on medical leave, Dooley worked as a Process Maintenance Tech 6. The Tech 6 role is physically demanding. An essential function of the Tech 6 role included repairing ore-processing equipment, a task that required lifting and carrying up to sixty pounds, frequently twisting, and occasionally stooping, kneeling, and crawling. Dooley’s return to work form provided by his doctor indicated he could not lift more than ten pounds, carry more than fifteen pounds, bend, squat, or twist. The United States Court of Appeals, Ninth Circuit affirmed the lower court’s decision to grant Summary Judgement in favor of the Defendants. Restructuring His Position Dooley asserts that NGM could have restructured his position and reassigned repairing ore-processing equipment to other technicians. The court concedes that role restructuring is generally a reasonable accommodation however, an employer is not required “to exempt an employee from performing essential functions or to reallocate essential functions to other employees.” Dark, 451 F.3d at 1089. Dooley also alleged that NGM could have reduced his hours as part of an accommodation while NGM continued to assert that even working part time Dooley would need to repair ore-processing equipment, an action he was still not cleared to do by his doctor even on a part time basis. Request for Assistive Equipment Dooley argued that NGM should have allowed him to use existing workplace equipment like cranes, forklifts, and dollies as assistive equipment to perform his role. Providing such equipment could typically be an accommodation but Dooley provided no evidence that he could operate the referenced equipment with his medical restrictions. Reassignment Dooley alleges that he was denied reassignment as a reasonable accommodation because he was denied reassignment to an open lab position in April 2018. However, Dooley was only cleared to work in December 2018 when the position was no longer open. NGM had other roles open at that time, and it is an undisputed fact that Dooley turned reassignment to those positions down. Per Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) “there is no duty to create a new position for the disabled employee." Dooley had turned down the positions that would have qualified as a reasonable accommodation, there was no expectation for NGM to create additional roles to accommodate Dooley. Request for Additional Leave It is undisputed that NGM provided Dooley with paid disability leave for over a year, including two extensions. Because of the length of the accommodation, Dooley was required to show that additional leave would have allowed him to heal and “plausibly have enabled [him] adequately to perform [his] job. Humphrey, 239 F.3d at 1136. Dooley could not provide such documentation because his doctor indicated that the restrictions were permanent. Dooley does not allege that more leave would have healed him but that it would have provided more time for him to “bid on positions that would come open.” However, Dooley failed to present any evidence that such positions opened within a reasonable time after his termination that he would have been able to perform. Take Aways NGM was able to provide documentation that they fully engaged with Dooley’s requests in good faith and that the process was hindered by Dooley’s lack of engagement and documentation. Awareness of ADA obligations and processes is the best pre-emptive protection against a claim of discrimination. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

The Royal Law Firm Attorneys Receive Finding of No Reasonable Cause at CHRO.

June 18, 2025
Royal attorneys successfully obtained a dismissal at the Connecticut Commission on Human Rights and Opportunities. The Complainant alleged discrimination based on race, color and sex. Royal attorneys argued that the Complainant was not subjected to any adverse employment action and thus could not establish a prima facie cause of discrimination. Royal attorneys also argued that Complainant’s allegations of a hostile work environment and harassment fell short. The Complainant was performing her jobs duties in such a way that it was putting the employer at risk. Complainant’s direct supervisor devised a plan to mitigate the risk the employer was facing and help Complainant improve the quality of her work going forward. It was not disciplinary action, and Complainant was considered an employee in good standing at the time she filled her allegations of discrimination. CHRO agreed that there was insufficient proof to sustain a discrimination or hostile work environment claim and that “if anything, it revealed a disagreement in management styles that does not amount to discrimination and/or harassment under Connecticut law,” and dismissed the case against our client.