Understanding the Anti-Retaliation Acts of the Fair Labor Standards Act (FLSA)
Acts of retaliation are also called adverse employment actions by the FLSA; they refer to discriminating actions toward an employee who filed a complaint against an employer. This could be anything in connection with the employee’s exercise of rights under the FLSA guidelines. Such exercises may include an employee’s judgment that the wage being granted by the employer, as well as the number of work hours enforced by the employer, violate the policies under the Fair Labor Standard Acts.
FLSA law prohibits the employer from taking retaliatory acts or adverse employment actions against an employee, which include but are not limited to:
(1) Terminating the employee for engaging in protected activities; “protected activities" may mean any of the following:
- Participating in audits conducted by the Department of Labor (DOL) or in communicating with DOL pertaining to queries about wage entitlement during staff meetings.
- Campaigning against new or revised policies for overtime pay by sending out petitions.
- Formally requesting a raise.
- Formally testifying against criminal proceedings against violation of FLSA provisions.
- Formally communicating and providing information to investigators of the Wage and Hour department.
(2) Constructive dismissal by creating working conditions that make it unbearable for the employee to work effectively and efficiently, to which the employee’s only logical course of action is to resign. To further describe constructive dismissal, said adverse employment actions will greatly impact the wages, the job title, job responsibilities, and privileges and benefit levels by a degree of materiality, which could frustrate the employee from rendering productive work.
(3) "Blacklisting" or curtailing the employee’s ability to find work with another employer. This is usually done by maliciously disclosing to the potential employer the employee’s exercise of rights, by complaining about wages or hours of work that the latter deems as unfair.
(4) Filing an indemnity protection claim against an employee in preparation for adverse employment moves or retaliatory actions against a complaining employee.
(5) Reporting an employee as an alleged illegal alien, which is prohibited even if said employee is an undocumented alien. This is to preclude the employer’s possible exploitation of undocumented aliens as workers, where it will present economic benefits to hire them and then report their illegal status in case they complain about poor wages or excessive hours of work.