As defined in the FLSA retaliation means “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215 (a)(3). To show that retaliation, the employee has to first establish that the complaint falls within the narrowly defined range of activities. In practical terms, this means that it is not enough to complain to human relations that employees are not being paid overtime, for example. The employee has to filed a complaint with the Department of Labor or a court.

This standard is stricter than the rules for race and sex discrimination and harassment. A victim of sexual harassment can meet the protected activity definition by complaining to management of the behavior, and stating clearly that she finds it offensive and unwelcome.

In addition to showing that the protected activity is, indeed, protected by the law, a victim of retaliation has to show “adverse action.” In our area, that is usually held to mean that the employee has been fired, demoted, or denied a promotion. In extreme circumstances the courts will consider the kind of behavior that most of us recognize as “retaliation:” ostracism, snickering, relocation to a smaller office, assignment to worse tasks (or no tasks). But beware, often the kind of treatment that makes life in the workplace really unpleasant does not suffice for a retaliation claim.

Finally, the plaintiff has to establish that the adverse action was caused by the protected activity.

Though these three burdens may appear difficult, retaliation claims often are received well in court. Sometimes employers are so outraged that someone dared to complain that the retaliation is clear and unambiguous. In addition, courts may not always agree that certain behavior indicates racial bias, for example, but they do take offense at an employer retaliating against someone exercising his rights in good faith.

This practice works most smoothly for hourly employees, who must be paid for all hours worked, at least minimum wage, plus overtime pay.  If an employee who used to work five full days per week is reduced to four, the employer must pay him for the four days.  This strategy can backfire if the furlough is in name only.  If employees actually are working on the days when they are supposed to be off, then the employer is in danger of violating the Fair Labor Standards Act and Maryland’s Wage Payment and Collection Act.  Actual work includes checking email and voicemail messages, responding to customers or coworkers, and waiting on call in some instances, depending on the amount of freedom the employee has while waiting to be called into action.  If the employee often works from home or from the other end of a telephone or blackberry, the employer needs to be vigilant to be sure that the employee is not responding as usual on a furlough day.

Exempt employees pose a more difficult problem.  An employee exempt from overtime compensation requirements must meet responsibility requirements, as well as the salary test, in which the employee must earn $455 or more per week.  If the employee does any work during a week, the entire week’s salary must be paid.  An exception is made if there is a sick or personal leave policy; in that case full (not partial) days of sick or personal time, or days on which the employee does not work because of disability, may be deducted from pay, with personal/sick leave to fill in the gaps if it is available.  The employee’s leave balance can also be used to supplement the employer’s “sick” time, days in which there is not enough work.

In other cases there is not enough sick or other leave time to pay for furlough days, or the employer simply cannot afford to keep so many exempt employees on full-time status.  Then to furlough an exempt employee in the private sector, the employer has to cut the employee’s pay.  In Maryland, employees are entitled to two week’s notice of a salary reduction.  And the new pay may not be less than $455 per week.  An employer risks losing the exemption when it violates the rules about deductions from pay.

Representative Donna F. Edwards of Maryland recently introduced a law to increase the minimum wage gradually, H.R. 2570.   In that law, dubbed the “WAGES Act,” for Working for Adequate Gains for Employment in Services, the minimum wage would be increased to $3.75 per hour three months after enactment of the law.  In 2011, the minimum will again rise, to $5.00 per hour, and then keep pace at 70% of the federal minimum wage, or at least $5.50 per hour, by 2012.

According to census figures released by Representative Edwards’ office, “nearly 15% of all waiters and waitresses live below the federal poverty level, while only 5.7% of the workforce as a whole falls beneath this threshold.  Minority populations are particularly hard hit by these low wages. According to the Census Bureau’s Current Population Survey (CPS), 22.3% of African-American tipped employees and 18% of Latino tipped employees live in families that are below the federal poverty level.”  Women are also disproportionately affected.