- The U.S. Department of Labor (DOL) has sued a Massachusetts-based construction company and its CEO, alleging they unlawfully retaliated against an employee who engaged in protected activity under the Occupational Safety and Health Act of 1970 (OSH Act), causing the worker's arrest by U.S. Immigration and Customs Enforcement (ICE) (R. Alexander Acosta, Sec. of Labor, U.S. Department of Labor v. Tara Construction, Inc. and Pedro Pirez, No. 19-cv-10369 (D. Mass. Feb. 27, 2019)).
- The worker, José Martin Paz Flores, broke his leg when he fell from a ladder at work, the complaint said. He reported the injury to his employer, which is protected activity under the OSH Act. The CEO allegedly retaliated by contacting the police after confusion over Flores' first name at the hospital. This call triggered an ICE/Boston Police Department task force investigation and the CEO also later allegedly facilitated Flores' arrest, texting a detective to inform him when Flores would come in to pick up a check and leading to Flores being arrested in front of his young son, the complaint alleged.
- The employee would not have been arrested if he had not reported his injury and caused the OSHA inquiry, DOL said. The suit seeks back wages, interest, compensatory and punitive damages.
The OSH Act prohibits employers from retaliating against employees for exercising their rights under the OSH Act, according to to a DOL fact sheet. "These rights include filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, reporting an injury, and raising a safety or health complaint with the employer," DOL said.
When an employer knows or suspects that an employee has exercised one of these rights, it cannot subject the employee to adverse employment actions such as firing and layoffs, blacklisting, demoting, denying overtime or promotions, discipline, denial of benefits, failure to hire or rehire, intimidation/harassment, making threats, reassignment, reducing pay or hours, etc., according to DOL. The fact sheet also makes clear that it "is unlawful for an employer to terminate workers in retaliation for asserting OSH Act claims or cooperating with an OSHA investigation, regardless of immigration status."
Some have suggested that increased immigration enforcement from the federal government has emboldened employers to report workers to ICE. More employees are filing complaints with the California Labor Commissioner's Office alleging that their employers are threatening them — an act made illegal several years ago.
New York is considering a similar move; the state's attorney general recently announced a bill that would prohibit employers from threatening undocumented workers with deportation if they complain about or report wage and hour violations. The proposal would amend existing law to add that unlawful retaliation includes contacting or threatening to contact immigration authorities about an employee's suspected citizenship or immigration status or that of an employee's family or household member.