Department of Labor issues fact sheets on retaliation

By Howard Rubin and Don Stait

The Daily Record Newswire

The U.S. Department of Labor's Wage and Hour Division has issued three new fact sheets offering further guidance to employers on the topic of retaliation under the Fair Labor Standards Act, the Family and Medical Leave Act and the Migrant and Seasonal Agricultural Worker Protection Act. Each of these statutes contains provisions prohibiting employers from taking adverse employment actions against employees for asserting rights covered under these laws.

In addition to providing general information concerning the FLSA's retaliation prohibition, Fact Sheet 77A, Prohibiting Retaliation Under the FLSA, explains that covered complaints may be made orally or in writing, and that most courts have concluded that the FLSA's retaliation protections include internal complaints.

Fact Sheet 77A also explains that all employees of an employer are protected by the FLSA's retaliation provisions, including those employees who would not generally be covered by the FLSA because of the size of the company or the number of employees.

The second fact sheet, Fact Sheet 77B, Protection for Individuals Under the FMLA, concerns regulations that prohibit employers from retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA.

It provides examples of prohibited conduct, including refusal to authorize FMLA leave for an eligible employee, discouraging an employee from using FMLA leave, and manipulating an employee's work hours to avoid responsibility under the FMLA. Fact Sheet 77B further points out that retaliation complaints can be raised within two years from the date of violation.

Finally, Fact Sheet 77C, Prohibiting Retaliation Under the Migrant and Seasonal Agricultural Worker Protection Act, discusses the protections and enforcement procedures under the retaliation provisions of the MSPA.

That law establishes employment standards related to wages, housing, transportation, disclosures and record-keeping requirements for migrant and seasonal agricultural workers, and mandates that farm labor contractors register with the U.S. Department of Labor.

For more information, or to read any of the complete fact sheets, visit www.dol.gov/WHD/fact-sheets-index.htm.

Delay for notice posting rule

The National Labor Relations Board has agreed to postpone the effective date of its notice posting rule until April 30, to give a federal court in Washington, D.C., the opportunity to rule whether the NLRB has the statutory authority to promulgate the rule.

Assuming the court finds in favor of the NLRB, most private-sector employers will be required to post the notice, which is available at no cost at www.nlrb.gov.

President signs bill extending benefits

Just hours after the House and Senate broke their stalemate and approved a measure to provide a two-month extension of the payroll tax cut, emergency unemployment insurance benefits and a reduction of the Medicare reimbursement rate to doctors, President Obama signed the measure into law. The Temporary Payroll Tax Cut Continuation Act of 2011 will require the House and Senate to work together to draft a bill that would extend these provisions for the remainder of 2012.

Commercial drivers retain 11-hour shift limit

The long-awaited final rule on driver hours of service, was issued last month by the Federal Motor Carrier Safety Administration, and maintains a limit of 11 hours of continuous time that a driver can be behind the wheel.

The limit was expected to be reduced to 10 hours based on the FMCSA's proposed rule, but the agency could not definitively demonstrate that a 10-hour limit would have a higher net benefit than the 11-hour limit now in place.

Under previous regulations, drivers were permitted to "restart" their workweek whenever they took at least 34 consecutive hours off. The new rule retains the "34-hour restart," but limits this restart to once every 168 hours (seven days), effectively reducing driving hours to 70 per week from the previous limit of 82 hours per week.

Other changes to the HOS are:

* The 34-hour restart must now include at least two periods of time between 1 a.m. and 5 a.m. (measured by the driver's home terminal time) to increase the driver's opportunity to sleep.

* Drivers may spend no more than eight hours on duty without taking a minimum 30-minute break before driving again. The 30 minutes may include any off-duty activities, including eating or spending time in the truck's sleeper berth, but the time may not be used for work-related activities. The FMCSA carved out an exception to this rule for drivers of certain kinds of explosives; they may use the 30-minute break attending to the truck carrying the dangerous materials.

* The definition of "on-duty time" has been revised to exclude time spent as a passenger in the vehicle while another driver is behind the wheel.

* For "egregious violations" of the hours-of-service rule, drivers now face greater monetary penalties as well as being taken out of service at roadside. Employers now face a penalty of up to $11,000 per offense, and drivers up to $2,750 per offense, for violations of three or more hours beyond the 11-hour limit, which are considered "egregious" under the new rule.

The penalties, the on-duty time rule change, and some other minor changes will become effective Feb. 27. All other changes will not become effective until July 1, 2013, to give law enforcement and the transportation industry time to train personnel and to adjust schedules and automated systems.

For more information, visit www.fmcsa.dot.gov/rules-regulations/topics/hos-final/hos-final-rule.aspx.

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Howard Rubin is a shareholder in Littler Mendelson's Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson's Portland office. Contact him at 503-221-0309 or dstait@littler.com.

Published: Fri, Feb 3, 2012

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