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Retaliation claims are here to stay. According to charge
statistics recently released by the EEOC, retaliation claims rose to an
all-time high of 37,344 in fiscal year 2011, and were included in 37.4% of all
charges filed with the agency. Recent developments lead us to conclude
that this trend will continue, in 2012 and beyond.
In December 2011, the U.S. Department of Labor ("DOL"),
Wage and Hour Division ("WHD"), released guidance pertaining to prohibitions
against retaliation under the Fair Labor Standards Act ("FLSA") and the Family
and Medical Leave Act ("FMLA").
The WHD FLSA guidance, set forth in Fact Sheet #77a,
incorporates the holding from the United States Supreme Court's decision in Kasten v. Saint-Gobain,
where the Court expanded the FLSA's anti-retaliation provision to include an internal,
verbal complaint made by an employee about possible FLSA violations.
Specifically, Fact Sheet #77a states the WHD's position that:
For more information about Kasten v.
Saint-Gobain, click here.
As to the FMLA, Fact Sheet #77b
gives specific examples of prohibited conduct, including:
For more information about recent developments pertaining
to the anti-retaliation provisions of the FMLA, click here and
With new statutory prohibitions against retaliation, such
as the prohibitions set forth within the Dodd-Frank Wall Street Reform and
Consumer Protection Act, and the recent developments described above and
elsewhere (read more here
it does not take a crystal ball to predict that retaliation claims will
continue to rise.
Visit Employment Matters
for additional insights from Martha J. Zackin of Mintz Levin's Boston office.
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