Combatting Retaliation Against Workers Through Robust Enforcement
All workers have a right to speak out at work against unfair or unsafe practices. And if they face retaliation from their employers, we’re here to protect them by enforcing the law. In fact, the successful enforcement of our laws depends on all workers knowing that when they choose to speak out at work, the Department of Labor and other government agencies will protect them from retaliation. That's why combatting retaliation through robust enforcement is one of my top priorities as Solicitor of Labor—and why we’re ramping up our enforcement efforts across the department.
Enforcement in action in Kentucky
But what does combatting retaliation mean for workers, and what does the enforcement process look like? A recent case from Kentucky illustrates the steps we can take to protect workers who face retaliation. Here’s a brief timeline of that process:
October 2021: The Department of Labor’s Wage and Hour Division opened an investigation into a convenience store in Kentucky where employees reported they were not being paid for overtime hours.
March 2021: Following the investigation, the Wage and Hour Division notified the store managers that failing to pay their employees for overtime is a violation of the Fair Labor Standards Act. The managers responded by retaliating against their employees: threatening to discipline those who cooperated with the department’s investigation, asking employees to sign false statements indicating they never worked overtime, berating and belittling employees, and demoting two employees.
April 2021: On April 4, the Solicitor’s Office intervened swiftly: We simultaneously filed a lawsuit for the underlying wage violations, a motion for a temporary restraining order, and a preliminary injunction to prohibit the managers’ retaliation.
On April 8, the district court issued a temporary restraining order directing the employer to cease all retaliatory conduct and provide a notice to its employees advising them of their right to speak to the department without fear of retaliation.
On April 12 – just over a week after the Solicitor’s Office filed suit – the district court issued a permanent injunction requiring compliance with the anti-retaliation provision of the Fair Labor Standards Act. The order also required the employer to reinstate the two employees who had been demoted for participating in the department’s investigation.
These workers and others like them across the country speak out not only to protect themselves and their colleagues, but for the safety of their communities and economic fairness for all. And many workers face retaliation based on immigration status, which is particularly nefarious. At the Solicitor’s Office, we protect all workers, regardless of immigration status. And retaliation against workers, whether through threats or calls to immigration enforcement, will not be tolerated.
A new collaborative — and faster — enforcement model
Many of the laws we enforce protect workers from retaliation. Historically, the department had generally included retaliation cases as one of several claims in a lawsuit – the result being that the retaliation cases, like the underlying merits case, can take a year or even longer to decide. In other words, even when retaliation violations are found, the harm is done: employees are chilled, quit or lose their jobs, or fear further retaliation – whether it is based on immigration status, job loss, or even physical violence. That harm cannot be undone.
That’s why the Solicitor’s Office has changed the model. We now regularly work with all of our client agencies – including our colleagues at the Wage and Hour Division as they bring a renewed focus to retaliation – closely and early to stop retaliation as soon as we see it. And we are spurring best practices across our regional offices by launching a retaliation training series that offers our attorneys training and tools to combat retaliation quickly and effectively.
Over the past year, we have obtained temporary restraining orders and preliminary injunctions in more than a dozen cases, including employers who:
Destroyed payroll records and threatened workers who cooperated with the department.
Blacklisted former employees and threatened to go after former employees they thought were responsible for a department investigation.
Threatened family members of a worker who complained about not receiving due wages.
Fired a pregnant employee less than an hour after she raised concerns about working with a COVID-positive symptomatic coworker.
Screamed obscenities and fired shots from a handgun at H-2A workers who requested water while working in the fields of a soybean farm.
Working across the government to protect workers’ rights
In November, the Solicitor’s Office and the Wage and Hour Division announced a joint anti-retaliation initiative with the Equal Employment Opportunity Commission and the National Labor Relations Board. This initiative recognizes that we must make it easier for workers to navigate the labyrinth of federal labor and enforcement policies. Through our collaboration, we are engaged in cross-training, referrals, and coordinated investigations.
Our labor laws are only as strong as our ability to enforce them, and workers who step forward to speak out are the core of our mission. Because the protection of workers is at the center of all that we do, combatting retaliation is a key priority for us – and it is one of several priorities that I have set forth since I was confirmed as the Solicitor of Labor.
As we embed these priorities into the fabric of our enforcement at the Solicitor’s Office, we will be sharing stories of why they matter, and how they are impacting our enforcement work around the country.
Learn more about our recent anti-retaliation enforcement efforts here.
Seema Nanda is the Solicitor of Labor.