DOL issues new guidance to employers warning about retaliation

Retaliation continues to be at the top of the federal government’s priority list. In March 2022, the U.S. Department of Labor (DOL) issued a new field assistance bulletin titled Protecting Workers from Retaliation, which addresses worker protections from retaliation under laws enforced by the agency’s Wage and Hour Division (WHD). The DOL pledged to “use every tool available” to “uphold the rights of workers to identify violations of the law without fear of termination or other threats to their reputation, safety or livelihood.” The DOL, the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) recently announced a joint initiative to combat retaliation.

Enforcement targets

According to the DOL, retaliation occurs when an employer, including through a manager, supervisor, administrator, or other agent, takes “adverse action” against an employee for engaging in “protected activity.” The agency defines an adverse action as “any action that could discourage an employee from making a complaint or expressing concern about a possible violation or engaging in protected activity, such as filing a complaint or cooperating in an investigation.”

A retaliation finding also requires a causal connection between the protected activity and the adverse action. It’s important to note more than half of all EEOC charges filed by current or former employees in recent years contained retaliation allegations.