Employer preemption of protected activities December 20, 2013
Employees have a right to oppose discrimination and unlawful wage practices in the workplace, to assist others in enforcing their rights to overtime pay, to the minimum wage and to freedom from discrimination, and to participate in any manner proceedings, hearings or investigations under the federal wage and hour and anti-discrimination laws.
These laws prohibit employers from retaliating against employees who have engaged in a protected acts of opposition, assistance or participation. But what happens when an employer threatens to take adverse action if the employee exercises a protected right? “If you cooperate with the Agency’s investigation, you’re fired.” “If you support Jane’s pregnancy discrimination case, you’re fired.” Threats of retaliation such as these can deter protected activities as effectively as retaliation after-the-fact. If frightened workers stop coming forward with their grievances and their testimony, the statutes protecting workers and their rights to overtime pay, the minimum wage and to equal treatment at work cannot be enforced. That’s why employers who make such threats can expect the Department of Labor, the EEOC or a private party to seek an injunction prohibiting the threats, any retaliation against workers, and ordering the employer to reassure those it previously threatened that it will not act against them.
Take a look at this recent Temporary Restraining Order from the United States District Court for the Central District of California. It illustrates what happens when employers go to far and threaten their workers if they exercising their legal rights. In this case, the Department of Labor was investigating the employer for violations of the Fair Labor Standards Act. The employer told its employees that anyone who cooperated with the DOL would be fired. The DOL sought and obtained a TRO. It contained this powerful language:
IT IS SO ORDERED that: (1) Defendants be enjoined from terminating or threatening to terminate; reporting or threatening to report to immigration authorities, inflicting or threatening to inflict bodily harm on, or retaliating or discriminating against their employees in any other way, based on their belief that such employee spoke · with a Department of Labor official; (2) Defendants be enjoined from telling anyone who works for them not to speak to representatives of the Secretary or to provide false information to the Secretary or otherwise coercing employees to make false statements regarding the terms and conditions of their employment; (3) Defendants be enjoined from obstructing the Secretary’s investigation in any way; and that (4) a representative of the Secretary, be required to read aloud the following statement to all employees employed at [Defendants’] facilities informing them of their right to speak with representatives of the Secretary free from retaliation or threats of retaliation or intimidation by Defendants, the statement to be read during employees’ paid working hours: “You are protected by the Fair Labor Standards Act and have the right to participate freely in the U.S. Department of Labor’s investigation into your employer’s pay practices. You have the right to speak freely with investigators or other officials from the Department of Labor. Your employer is prohibited from retaliating against you in any way, including by terminating you, reporting you to immigration, inflicting physical-harm on you, or.threatening to do any of these things because you spoke with the Department of Labor. The U.S. District Court/or the Central District of California has ordered Mr. Ameri, and anyone acting on Mr. Ameri’s behalf, to cease coercing, retaliating against, threatening to retaliate against, intimidating, or attempting to influence or in any way threatening employees for providing information to the Department of Labor.
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