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May 03, 2012
Fact Sheet Helps Employers Understand FMLA Retaliation Issues

In an effort to raise employers’ understanding of retaliation issues, DOL’s Wage and Hour Division issued a fact sheet. DOL’s Fact Sheet #77B: Protection for Individuals under the FMLA provides information concerning the FMLA’s prohibition on retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

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The FMLA and its regulations prohibit employers from engaging in the following actions:

  • Interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right;
  • Discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right; and
  • Discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.

All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has:

  • Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
  • Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
  • Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

The fact sheet provides these examples of prohibited retaliatory conduct:

  • Refusing to authorize FMLA leave for an eligible employee;
  • Discouraging an employee from using FMLA leave;
  • Manipulating an employee’s work hours to avoid responsibilities under the FMLA;
  • Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; or
  • Counting FMLA leave under “no fault” attendance policies.

Any violations of the FMLA or the Department’s regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA.

To see a copy of the Fact Sheet # 77B: Protection for Individuals under the FMLA, go to http://www.dol.gov/whd/regs/compliance/whdfs77b.htm.

For additional information, visit the Wage and Hour Division website at http://www.wagehour.dol.gov.

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