The DOL’s new guidance on unlawful retaliation

Joining the EEOC, which issued guidance on covid-related retaliation last December, the Department of Labor has now issued its own guidance on retaliation. It traverses a wide expanse of federal laws, including retaliation under the wage-and-hour laws and the Taxpayer First Act.

While the DOL’s Wage and Hour Division will handle its own retaliation cases, OSHA will handle retaliation claims related to the Taxpayer First Act.

Retaliation under the labor laws

The DOL has a web page dedicated to retaliation. Geared toward employees, the page contains a 59-minute webinar and a 34-minute presentation. It also walks employees through various retaliation scenarios:

• An employee is fired after his manager overhears him telling another employee they’re being cheated out of overtime pay.
• An employee who returns from intermittent FMLA leave has her hours reduced because her manager says the company needs workers who show up every day.
• An employee is sent home in the middle of her shift because her manager is displeased about her need to express breast milk.

The DOL also released Field Assistance Bulletin 2022-02, which is directed to the department’s regional administrators. The bulletin goes well beyond the web page’s examples and includes retaliation against employees of federal contractors who take paid sick time and retaliation against employees whose wages are subject to garnishment.

The bulletin makes these key points:

• Employees are protected from retaliation, even if they mistakenly believe their rights have been violated. Opposite side of the coin: Your actions may constitute retaliation if you mistakenly believe employees participated in a protected activity (e.g., filing a complaint with the DOL).
• Retaliation is more than firing an employee. It can be subtle (e.g., you exclude an employee from a regularly scheduled meeting) or overt (e.g., you intimidate employees).
• The Consumer Credit Protection Act prohibits you from firing an employee because their wages are subject to garnishment, even if the garnishment isn’t subject to the CCPA (e.g., a state tax levy).

Retaliation under the Taxpayer First Act

The IRS has long had a whistleblower program under which informants share in the proceeds of any recovery. The one kink in the program is a lack of job protection for employees who blow the whistle on their employers’ tax shenanigans.

OSHA has published interim final regulations governing the anti-retaliation provisions of the Taxpayer First Act.

Employees are protected from retaliation when they provide information or assist in an investigation they reasonably believe to be related to a tax underpayment or tax fraud. Key: Employees’ belief must be objectively reasonable.

OSHA will apply procedures similar to the procedures it uses to investigate whistleblower complaints related to the Sarbanes-Oxley Act:

• Employees have 180 days from the date of the alleged retaliation to file a complaint with OSHA.
• OSHA will provide the employer with a redacted version of the complaint and employers have 20 days to make their case.
• Within 60 days after a complaint is filed, OSHA will issue a written determination regarding whether there is reasonable cause to believe retaliation has occurred:
  • If yes, it will issue a preliminary order to the employee. The order will include appropriate relief to make the employee whole, including reinstatement, back pay, liquidated damages, lost benefits, attorneys’ fees and costs.
  • If no, OSHA will notify the parties of its finding. If OSHA concludes the complaint was frivolous or was brought in bad faith, it can award employers $1,000 in reasonable attorneys’ fees.

The interim final regs became effective March 7, 2022.

Steps you can take

It’s clear the federal government is cracking down on all sorts of retaliation. But it should never get to retaliation. Here are some moves you can make to forestall a retaliation complaint:

✓ Implement systems that make it easy for employees to file complaints.

✓ Conduct comprehensive investigations.

✓ Determine how far retaliation goes in your company (hopefully, not very far). Consider these questions:

• Do you believe the company tolerates illegal behavior?
• Have you ever seen a manager or colleague break the law or breach an ethical standard?
• Did you ever report a violation and suffer retaliation of any kind?
• What would you do if you were asked to violate a law?