Leaders from these Big Three U.S. employment agencies hosted a webinar to address the issue of retaliation on Wednesday. Presenting were the Department of Labor’s Acting Director of Wage and Hour, Jessica Looman, Solicitor of Labor Seema Nanda, EEOC Chair Charlotte Burrows and the EEOC’s Regional Attorney for the Dallas District Office, Robert Canino, and NLRB General Counsel Jennifer Abruzzo.
Multi-Jurisdictional Enforcement Actions
The agencies discussed how they work together to address multi-jurisdictional issues of retaliation where an act may violate, for example, the National Labor Relations Act (NLRA) and Title VII. EEOC’s Canino said when the Commission uncovers a wrongful act of retaliation under one law overseen by the agency (there are many), they may start looking for signs that other laws were violated. So a retaliation charge could lead to an investigation of, for example, a hostile work environment.
The Most Common Types of Retaliation
Threats, discharges, etc.
To NLRB’s Abruzzo, a typical retaliation case under the NLRA looks like a case her office recently resolved (after an eight-year investigation). In it, a group of employees filed a lawsuit against their employer and started a campaign to change their working conditions. In response, the employer made coercive, threatening statements that the filing of the lawsuit was disloyal and no one participating would be allowed to work overtime. Ultimately, the employer discharged nine employees involved in the lawsuit and organizing.
Blackballing (when a closed case isn’t closed).
Looman explained that often retaliation occurs after her office has resolved a case, and her office will be pulled back into a case that was already wrapped. For example, an employer drove the employee to the bank and made them withdraw cash in an amount equal to the penalty WHD assessed against the employer and made the employee re-pay the employer. Looman’s office also gets re-involved in a closed case if they suspect the employer is blackballing the employee in the job market.
Retaliation (can be blatant or thinly-veiled).
Solicitor Nanda often sees gross retaliation in the form of threats to report employees to the police or to ICE. Looman agreed that retaliation cases looked similar in the Wage & Hour context. In a recent WHD case, a construction worker complained that he wasn’t being paid overtime. The employer began a “campaign” against him, recruiting other workers to threaten him and his family. The worker had to quit because of the hostility of his working environment. Ultimately, WHD obtained a court-ordered judgment preventing retaliation and $100k in punitive damages. Nanda sees insidious behavior like reducing hours, isolating, and mocking, too.
Beware of retaliatory harassment.
EEOC’s Burrows said that retaliation is the most frequently charged form of discrimination at EEOC. She most frequently sees retaliatory discharge—like a post-complaint termination—and retaliatory harassment cases—like when someone is isolated or mocked following a protected activity.
Four Retaliation “Red Flags”
DOL’s Looman sees pandemic-related retaliation trending in overtime issues in restaurants, healthcare, construction, and delivery mainly. She said her office is on the lookout for these “red flags” that cause them to look closely for retaliation:
- An employer attempts to prevent an employee from talking to WHD investigation, particularly if the employer insists that a corporate representative attend the meeting
- There is evidence of “coaching” of an employee by an employer during a WHD interview
- There is a sudden reversal in the employee’s willingness to be interviewed
- An employee suddenly isn’t on a payroll document when they had been before
The Consequences of Retaliation
Forget back-pay—you could end up paying credit card late fees or moving costs.
NLRB’s Abruzzo explained that her office has broad power to make unfair labor practice charge victims whole. (Woods Rogers recently wrote about her Abruzzo’s “Road Map” for the Biden NLRB.) So, for example, her office seeks not only back pay following a retaliatory discharge, but consequential damages an employee may have incurred like credit card late fees or penalties from drawing down their 401k to cover expenses due to lost income, or moving costs incurred in relocating to a new job.
Employees might be reinstated during the pendency of an investigation.
DOL oversees approximately 150 laws, including nearly two dozen workplace safety laws. In retaliatory discharge cases involving an employee’s protected activity concerning those laws, DOL will often seek immediate reinstatement which, if denied by the employer, would then lead to further enforcement requests like back pay, etc.
Retaliating could make a bad situation worse.
EEOC’s Burrow explained that the range of relief her Commission would seek for retaliation depends on the underlying statute. For example, punitive damages are sometimes not available unless there is retaliation. So an Equal Pay Act violation will not lead to punitive damages, but retaliation for a complaint about equal pay would. Her office most often seeks back pay and reinstatement and they focus on securing changes in employer policies and managerial training.
Best Practices to Avoid Retaliation
There was agreement that the “Big 3” were focused on intervening early to prevent retaliation from occurring in the first place.
Open a dialogue with EEO agencies.
Abruzzo advised employers to understand their obligations under the statute. She said her office is conducting significant outreach to the employment community, and that employers should reach out to their local NLRB office and ask for NLRB-conducted managerial training or support in conducting their own.
Assure employees that they will not suffer retaliation in your workplace.
Solicitor Nanda agreed with Abruzzo and emphasized a focus on culture and taking affirmative steps to prevent retaliation. Employers should be assuring employees that they will not face retaliation and make sure managers know the same.
DOL’s Looman suggested employers become familiar with the WHD’s “Essential Workers and Essential Protections” program and respond to DOL’s significant outreach programs.
Empower supervisors by training them to “nip retaliation in the bud.”
EEOC’s Burrows advised employers to message anti-retaliation, respect, and non-harassment internally. She explained that it needed to start from the top, that employers needed to empower first-line supervisors through training so they know how to recognize retaliation and can nip it in the bud.
Employment actions are difficult at the best of times and the retaliation issue makes them even more complicated. Never hesitate to reach out to someone on our Labor & Employment team to talk through your concerns about disciplining or terminating an employee who has recently engaged in some protected activity, whether founded or not. We can help you develop a strategy for how to handle the situation legally.
If you want to be proactive in protecting your workplace, the Labor & Employment team is able to conduct training for managers and supervisors to help them understand protected activity and unlawful retaliation. Please reach out for more information.
