Management Update

Department of Labor Issued Field Assistance Bulletin Showing Emphasis on Retaliation

By Jerry L. "Jay" Stovall, Jr.

On March 10 the U.S. Department of Labor issued Field Assistance Bulletin No. 2022-02: Protecting Workers from Retaliation (“FAB”).

In the FAB, the DOL identifies several actions that can constitute retaliation. This is significant because the FAB shows that the DOL intends to be very broad in its interpretation of what constitutes illegal retaliation. The adverse actions listed in the FAB include the usual termination and formal disciplinary action, but it also includes other, not-so-obvious things such as denying overtime, reducing hours, exclusion from meetings, assignment to a less desirable shift, requiring employees to “kickback” money that the DOL had previously owed to them.

The FAB also expands the scope of who may commit actionable retaliation beyond an employer to include almost anyone acting to further the employer’s interests.

The FAB also makes it clear that protection against retaliation does not cease when one’s employment ceases. Employers are also forbidden from retaliating against one who no longer works for the employer.

Lastly, the FAB again emphasizes the Memorandum of Understanding between the DOL and the National Labor Relations Board entered in January of this year. As I have written previously, under the MOU, the DOL and the NLRB will share information and an employee’s complaint of retaliation to the DOL may also lead to an investigation by the NLRB.

Bottom Line: More so than ever, it is important that employers take a studied look at how they respond to employees who engage in protected activity. What an employer may call paid leave while it completes an investigation may well be seen as an embarrassing suspension by the complaining employee, and the DOL.

Can My Boss Really Fire Me for Talking About Compensation?

By Jerry L. "Jay" Stovall, Jr.

I recently read an article about a manager who posted this notice in an employee break room:

EFFECTIVE IMMEDIATELY, CONVERSING ABOUT WAGES (BOTH ON DUTY AND OFF DUTY) IS STRICTLY FORBIDDEN.

This is considered proprietary information and as such, it is protected legally. If you are overheard speaking (OR LISTENING TO!!) a conversation in which wages are discussed, you will receive disciplinary action up to and including termination.

As a reminder, Kentucky is an at-will state, meaning that your employment can be terminated for any reason without legal percussion. Or NO REASON.

The fact that Kentucky and Louisiana are both at-will states will not help this employer one bit. This type of policy is specifically forbidden by the National Labor Relations Act, which applies to both union and merit shop employers, and it will also be forbidden in Louisiana if a Bill currently pending in the Senate becomes law.

The National Labor Relations Board has this to say about policies limiting employees’ rights to talk about their compensation:

Under the National Labor Relations Act (NLRA or the Act), employees have the right to communicate with other employees at their workplace about their wages. Wages are a vital term and condition of employment, and discussions of wages are often preliminary to organizing or other actions for mutual aid or protection:

If you are an employee covered by the Act, you may discuss wages in face-to-face conversations and written messages. When using electronic communications, like social media, keep in mind that your employer may have policies against using their equipment. However, policies that specifically prohibit the discussion of wages are unlawful.

You may have discussions about wages when not at work, when you are on break, and even during work if employees are permitted to have other non-work conversations.

If it becomes law, Louisiana Senate Bill 410 will also make it unlawful for an employer to act against an employee for “inquiring about, disclosing, comparing, or otherwise discussing the employee's wages or the wages of any other employee, or aiding or encouraging any other employee to exercise the same actions.”

Although policies forbidding employees from discussing their pay were common in the “good old days”, I would urge caution in the enforcement of any policy that limits an employee’s ability to discuss their pay today.

Do You Hear That Sound? It’s The Paid Leave Train, And It’s Heading Straight for You

By Jerry L. "Jay" Stovall, Jr.

Most of us are very familiar with the Family and Medical Leave Act, which requires unpaid leave, a continuation of benefits, and reinstatement of employees who take off of work for various health and military-leave-related reasons.

Fortunately, the FMLA only applies to employers with fifty or more employees, and we currently have no comparable state law that would apply to smaller employers.

That is probably going to change in the near future.

Earlier this month, Maryland became the tenth state to recently pass a law requiring private employers to provide paid family and medical leave. Similar bills are currently pending in at least twenty-five other states, including Louisiana.

Louisiana currently has no less than two Bills pending in the House and Senate that would require private employers to provide paid leave for sickness, and family and parental leave, and one that would require governmental employers to provide similar paid leave benefits. The Bills would variously apply to employers with at least five or twenty employees, and one would apply to state employees. (Senate Bill 289, House Bill 1003, and House Bill 945 respectively).

Although employers do not need to take any concrete action in response to any of these Bills at this time, it would be a good idea to keep them on your radar. If any of these become law, they will present significant changes.