August 15, 2006 > Watercooler Counsel
Under the Microscope
by Rich Proulx
Q: I was informed by the Dept. of Labor - Wage and Hour Division that I am under investigation. They wouldn't tell me why I was under investigation or even if it was due to a problem with employees' hours or wages! They are visiting my company as part of their investigation. Can you give me any advice on what I should expect?
A: Let me reassure you, you are not alone. The Wage and Hour Division does not inform businesses why they are being investigated. Usually, it is because they have received a complaint. Sometimes they focus on low-wage industries because they are more likely to have high rates of violations or more egregious violations. Other times, they will focus on a number of businesses in a specific geographic area. Their investigations can be about any of the laws they enforce, which covers a broad range of issues such as overtime, child labor, minimum wage, FMLA leave, and even certain employment standards and worker protections under the Immigration and Nationality Act. I strongly suggest you take a look at the list of laws they enforce to make sure you are acquainted with all of them before one of their investigators arrives at your doorstep. You can find them on the web at www.dol.gov/esa/whd. As to what to expect when they come, they will likely 1) look through your documents, such as payroll records; 2) conduct private interviews with your employees; and 3) if they discover a problem, they will have a sit down with you to tell you what they found and what they want you to do about it (i.e. pay $). You can have an attorney represent you during any part of the process, but it's definitely not required.
Q: I complained about sexual harassment by my supervisor. My employer supported my complaint and disciplined the harasser. In order to keep me away from the former harasser, the company decided to reassign me to another job (for the same pay). Although I am glad I don't have to work with my former supervisor anymore, I liked my old job better and would have preferred to keep it. Did my employer do the right thing?
A: Your situation sounds very similar to the one recently decided by the Supreme Court (Burlington Northern & Santa Fe Railway Co. v. White). The Court clarified the national standard for retaliation. It is illegal to retaliate against someone for engaging in protected activity, such as making a discrimination complaint or engaging in EEO activity. In order to be retaliation, the employer must subject the person to an adverse action that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." For example, a change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Another example given by the Court was that a supervisor's refusal to invite an employee to lunch is normally a trivial, non-actionable petty slight. But, excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well be retaliation as it could deter a reasonable employee from complaining about discrimination. Most relevant to your situation, the Court determined that transferring Ms. White to a less desirable job after she complained of sexual harassment was illegal retaliation. So, no, your employer did not do the right thing.
Rich and his team of government experts want your toughies. Last fiscal year, 30,375 complaints were registered with the Dept. of Labor Wage and Hour Division. Send your questions to Rich at Watercooler.Counsel@eeoc.gov who is a former Supervisory Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.