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‘Alarming’ Surge in Retaliation Spurs Labor Agency Collaboration

Nov. 17, 2021, 8:05 PM

A spike in employers retaliating against employees for asserting workplace rights is leading the U.S. Labor Department to use more aggressive enforcement and litigation tools, the DOL’s top attorney said Wednesday.

“What we’ve all been seeing across our agencies is increasingly alarming behavior by employers that has caused us to want to act in unison and really send a strong message that this behavior will not be tolerated,” DOL Solicitor Seema Nanda said at an online event for employers co-hosted by the National Labor Relations Board and the U.S. Equal Employment Opportunity Commission.

Nanda said she’s deployed her office of more than 500 attorneys nationwide to get more actively involved and at earlier stages in cases, including by increasing their filing of motions seeking temporary restraining orders and preliminary injunctions from courts to block businesses from continuing to chill workers from participating in DOL investigations.

She spoke alongside political leaders at the EEOC and NLRB to kick off a tri-agency initiative focused on combating employer reprisals when workers file complaints, cooperate with investigators, or engage in collective activity.

The agencies have long made anti-retaliation a core part of their missions under their respective workplace statutes, but agency officials said the increase in certain troubling types of employer actions has triggered their decision to coordinate on a heightened emphasis on retaliation.

They’ve observed such trends as employers threatening to report workers to immigration enforcement, making physical threats against workers or threatening their family members, or giving employees unwarranted negative references when they seek new employment—all in response to the workers speaking up, Nanda said.

Nanda was joined by EEOC Chair Charlotte Burrows (D), who said 56% of the commission’s charges in fiscal 2020 alleged some form of retaliation.

Jessica Looman, the acting administrator of the DOL’s Wage and Hour Division, noted that civil monetary penalties assessed in her agency’s retaliation cases ballooned by 400% from 2019 to 2020.

Intentional Interventions

The agencies’ event Wednesday was geared to the business community, which Nanda and others said is mostly in compliance with anti-retaliation laws. But they made a point of highlighting practices that they believe warrant more intentional interventions and cross-agency communication.

NLRB General Counsel Jennifer Abruzzo, for instance, called out employers that take advantage of undocumented workers by threatening to call U.S. Immigration and Customs Enforcement to initiate deportation proceedings.

“We have taken a very firm and hard line about not allowing for the exploitation of this vulnerable population and certainly not allowing for those threats to affect our processes,” said Abruzzo, highlighting her Nov. 8 memo that outlined the protections she’ll seek for immigrants asserting their rights.

The discussion also coincided with the EEOC’s publication Wednesday of new guidance to clarify how anti-retaliation protections apply during the ongoing pandemic.

Employer representatives submitted questions in writing, a few of which were read to the officials, including a request for how the agencies would describe a model employer who is in full compliance with anti-retaliation measures, and how they define an employer “blacklisting” workers from gaining future employment.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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