Federal Agencies Reiterate that Anti-Retaliation Statutes Protect Workers Regardless of Immigration Status

March 23, 2017
Mehreen Rasheed

On January 10, the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL) and National Labor Relations Board (NLRB) issued a joint fact sheet explaining that employees are protected from retaliation for asserting workplace rights regardless of immigration status. Retaliation occurs when an employer takes an adverse action against an employee, such as termination, for engaging in certain employee activities protected by law, such as filing a complaint about a violation of workplace rights.

The fact sheet covers the anti-retaliation provisions of various laws overseen and enforced by the DOL Wage and Hour Division, DOL Occupational Safety and Health Administration, DOL Office of Federal Contract Compliance Programs, the EEOC, and the NLRB. Under all of the laws cited, workers of any immigration and work authorization status are entitled to the rights conferred, including protection from retaliation. However, remedies may be limited for employees without proper work authorization.

Rights of All Workers Regardless of Immigration Status

Under the Fair Labor Standards Act, all employees, including those without proper work authorization, are entitled to minimum wage and overtime pay for the hours they worked, and are protected from retaliation for asserting these rights. Employers may not report an unauthorized or undocumented worker to immigration authorities in retaliation for filing a wage claim. Employees are similarly protected regardless of immigration status under the anti-retaliation provisions of the Occupational Safety and Health Act; the whistleblower provisions of 21 other federal laws; anti-discrimination laws enforced by the EEOC, such as Title VII of the Civil Rights Act; and anti-discrimination laws enforced by the Office of Federal Contract Compliance Programs. The National Labor Relations Act (NLRA) protects all employees from retaliation for engaging in certain union activities and working together to improve the terms and conditions of employment.

Federal immigration law itself contains anti-discrimination protections for employees. Under the Immigration and Nationality Act (INA), employers may not discriminatorily hire, fire, or recruit or refer for a fee based on citizenship or immigration status, as well as national origin for employers that fall outside of the EEOC’s jurisdiction. Employers are also prohibited from discrimination in the process of verifying a worker’s employment eligibility using the Form I-9 and E-Verify programs. These laws are enforced by the Department of Justice Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Employers may not retaliate against workers who assert rights under the INA’s anti-discrimination laws, or file charges or cooperate with the OSC.

Remedies May Be Limited for Some Workers

Remedies for employees without proper work authorization may be limited. According to the fact sheet, employees who bring NLRA claims and are without work authorization may not receive reinstatement or back-pay awards for work that would have been performed had the employee not been unlawfully terminated. In Hoffman Plastics Compounds v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the NLRB lacked authority to order such back pay to an undocumented worker who was discharged in retaliation for union organizing. Other remedies, such as cease and desist orders, may still be imposed.

The Department of Labor has taken the position that employees without work authorization are still entitled to unpaid wages for work already performed, and several courts ruling on this question have agreed. See, e.g., Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 323 (D.N.J. 2005), aff’d, 691 F.3d 527 (3d Cir. 2012); Flores v. Amigon, 233 F. Supp. 2d 462, 464 (E.D.N.Y. 2002). While there is little settled law in the contexts of other federal employment statutes, some courts have been reluctant to expand Hoffman to other contexts. See, e.g., Rivera v. NIBCO, 364 F.3d 1057, 1061 (9th Cir. 2004) (declining to allow inquiry into plaintiff’s immigration status in a Title VII national origin discrimination case, reasoning that Hoffman does not control because of fundamental differences between the NLRA and Title VII).

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