Employment-DOL Issues Fact Sheet On Protection Under The FLSA Against Retaliation

Similar to yesterday’s blog, the U.S. Department of Labor (the “DOL”) has issued Fact Sheet # 77A, which provides general information concerning the prohibition of the Fair Labor Standards Act (the “FLSA”) on retaliating against any employee who has filed a complaint or cooperated in an investigation of a matter arising under the FLSA. The DOL’s Wage and Hour Division administers and enforces the FLSA. The Division investigates FLSA violations through its complaint-based and directed investigation programs.

Prohibitions. Section 15(a)(3) of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” Employees are protected regardless of whether the complaint is made orally or in writing. Complaints made to the Wage and Hour Division are protected, and most courts have ruled that internal complaints to an employer are also protected.

Coverage. Because section 15(a)(3) prohibits “any person” from retaliating against “any employee”, the protection applies to all employees of an employer even in those instances in which the employee’s work and the employer are not covered by the FLSA. Fact Sheet 14 provides additional information on FLSA coverage. Section 15(a)(3) also applies in situations where there is no current employment relationship between the parties; for example, it protects an employee from retaliation by a former employer.

Enforcement. Any employee who is “discharged or in any other manner discriminated against” because, for instance, he or she has filed a complaint or cooperated in an investigation, may file a retaliation complaint with the Wage and Hour Division or may file a private cause of action seeking appropriate remedies including, but not limited to, employment, reinstatement, lost wages and an additional equal amount as liquidated damages.

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