A federal court has ordered a New York home healthcare provider to stop intimidating and retaliating against employees. The provider was obstructing a US Department of Labor (DOL) investigation into its pay practices. On March 1, 2023, the Department obtained a temporary restraining order in the US District Court for the Southern District of New York against the company and its owner. The action came after the Department’s Wage and Hour Division began an investigation in January 2023 to evaluate the employers’ compliance with the Fair Labor Standards Act (FLSA).
In seeking the court order, the Department alleged — that since the investigation began — the owner has harassed and intimidated employees repeatedly by asking them about their communications with investigators and instructing them to provide false information to the Department. Investigators also learned the owner told employees she would have to close the business and they would lose their jobs if the Division’s investigation determined she had to pay overtime premiums. They also learned that the owner pressured employees to agree to return to the employers any monies owed to employees as a result of the investigation.
In its order, the court forbids the owner and her company from doing the following:
- Violating the FLSA’s anti-retaliation provisionsThreatening employees with termination or other retaliatory actions or taking any other actions to prevent them from participating in the Department’s investigation or in any other FLSA-protected activity
- Obstructing and interfering, in any way, with the Division’s investigation
- Telling workers not to cooperate with investigators or to provide incomplete or false information to them
- Questioning employees about their cooperation or communications with investigators
- Advising current and former employees that they must “kickback” or return any back wages the Department may determine they are owed
- Communicating with any employee regarding the investigation without first informing the employee that they may communicate with investigators voluntarily and not be discriminated against for doing so
The court also requires the employers to do the following:
- Permit division representatives to read aloud — in English, Spanish, Portuguese, and any other language understood by most employees — a statement describing employees’ FLSA rights during their paid working hours and in the presence of the defendants. The employers must also mail a written statement of the same to current and former employees.
- Provide a written notice to the Wage and Hour Division at least seven days prior to terminating an employee for any reason.
“When employers [ … ] use threats and intimidation to hinder a US Department of Labor investigation, we will take swift and effective legal action to hold them accountable and ensure that workers maintain the full legal rights and protections guaranteed under the Fair Labor Standards Act,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York.
Compliance Perspective
Issue
The FLSA’s anti-retaliation clause forbids any person from terminating or in any other manner discriminating against any employee because of such employee’s protected activities, including filing or cooperating with an investigation of the Wage and Hour Division. Employees have the right to speak freely with investigators, attorneys, or other officials from the DOL during an investigation. In the event the investigation results in a determination that the employer owes back wages to employees, those employees have a right to receive and keep the full amount of any back wages (after taxes) due to them. It is against the law for an employer or any person acting on their behalf to ask for this money back or ask employees to give up their current or future wages to get money from the investigation. Employers may not require any worker who receives back wages from the Department to return those monies to the employer.
Discussion Points
- Review your policies and procedures on nonretaliation and the prohibited firing of or other negative actions against any employee in retaliation for reporting concerns or cooperating in investigations.
- Ensure that staff are aware of your nonretaliation policies and the steps they should take if they suspect wrongdoing, including the use of the anonymous Hotline to report incidents against themselves or their coworkers. Also ensure that staff know what to do during an investigation and that they should cooperate with investigators. Document that these trainings occurred, and file each signed document in the employee’s education file.
- Periodically audit staff understanding to ensure that they are aware of your policy of nonretaliation in the workplace and how to report any concerns. Review reports received to ensure they were addressed properly in a timely manner.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
