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New Publication Continues DOL's Effort to End Employer Retaliation

New Publication Continues DOL's Effort to End Employer Retaliation

The U.S. Department of Labor (DOL) has continued its efforts to reduce employer retaliation by releasing new documentation outlining protections and prohibitions. Employers must stay up to date with these guidelines to stay compliant and ensure a safe working environment for all employees. Here are the major takeaways from the new publication, including examples of retaliation and what employers need to know.


What Does the Retaliation Guidance Entail?

As set out by the DOL, the new retaliation guidelines discuss prohibitions under the Wage and Hour Division (WHD), including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). 

According to the retaliation guidelines, an employer cannot respond to specific employee actions with undue punishment. An example would be firing an employee who reached out to HR regarding overtime pay. If an employee is acting within their rights, it is unlawful to retaliate against that employee. 


What Are Examples of Retaliation?

Retaliation can take many forms. Some examples listed in the WHD guidelines include:

  • Termination of an employee

  • Disciplinary action

  • Any threat of violence

  • Demoting the employee

  • Reducing an employee’s hours

  • Blacklisting an employee

  • Removing an employee from a necessary meeting

It is problematic when employees feel they cannot act within their rights without fear of losing hours, pay, or even their job. Employers need to remain educated on retaliation guidelines. But retribution is not specific to employers or even other employees. According to the FSLA, retaliation can apply to any person. It could be a third party using retaliation tactics, not the employer specifically. For this reason, employers need to allow for open communication so that any forms of retaliation are correctly reported and dealt with appropriately. 


Can Employers Terminate At-will Employees in Retaliation?

Some employers may believe an at-will employment relationship gives them the freedom to fire employees in retaliation. This is incorrect. At-will employment does not cover discrimination and retaliatory actions.

At-will means that an employee can be fired without reason or for any reason so long as the reason is legal. Retaliation and discrimination are both illegal practices and are therefore not covered by the at-will termination policy. 


What Do These Retaliation Guidelines Mean for Your Organization?

Employers must clearly understand these guidelines as it deeply affects their organization and workplace. Retaliation affects each employee and can cause poor culture within the workplace. Some of the retaliation guidelines are obvious, but others may be more nuanced. Know the guidelines and be sure you understand what exactly retaliation is and how you can actively avoid it in the workplace. 

Employers should learn the facts of a situation before determining whether or not to look into disciplinary action. For example, if an employee is taking extra breaks throughout the day, it is essential to know why. Depending on their reasoning, they may be within their rights under the FLSA, such as a new mother breastfeeding her child. 

As a whole, retaliation is a poor practice within the modern workplace, and organizations need to be proactive in avoiding such action. The Equal Employment Opportunity Commission (EEOC) stated that in 2020, approximately 56% of filed charges were allegedly retaliation. 

Retaliation can crush team morale and decrease employee satisfaction, which can diminish retention efforts. This is not to mention the legal risks that are at stake. Take time to formulate an anti-retaliation strategy that ensures employees are safe from retaliation within your organization. 


Additional Resources

You can also stay informed, educated, and up-to-date with employer retaliation and other important topics by using BerniePortal’s comprehensive resources:

  • BerniePortal Blog—a one-stop-shop for HR industry news

  • HR Glossary—featuring the most common HR terms, acronyms, and compliance

  • HR Guides—essential pillars, covering an extensive list of comprehensive HR topics

  • BernieU—free online HR courses, approved for SHRM and HRCI recertification credit

  • HR Party of One—our popular YouTube series and podcast, covering emerging HR trends and enduring HR topics 

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