On June 21, 2022 a federal jury in the District of Massachusetts awarded $650,000 to an immigrant worker who was retaliated against for reporting an on-the-job injury and causing an investigation by the Occupational Safety and Health Administration (OSHA).

The lawsuit alleged that the employer initiated a law enforcement investigation and facilitated the employee’s detention by U.S. Immigration and Customs Enforcement in retaliation for the OSHA investigation. The employer claimed it made an inquiry into the employee’s identity after finding he went by names other than what was listed on his employment document, and that the employee’s arrest thereafter was not caused by the employer’s actions.

Ultimately, the jury awarded the employee $50,000 for the emotional distress he suffered. The jury also awarded $200,000 in punitive damages against the company, and $400,000 in punitive damages against the CEO personally for his role in the retaliation.

In a press release issued by the Department of Labor, Solicitor of Labor Seema Nanda stated, “The Department of Labor will not tolerate retaliation against employees who complain of workplace abuses, including when an employer seeks to use an employee’s perceived immigration status as a way to intimidate workers.” OSHA Regional Director Galen Blanton added, “The Occupational Safety and Health Act prohibits employers from retaliating against employees who exercise their rights under the Act, regardless of the employees’ immigration status.”

Rights of Undocumented Workers

The Immigration Reform and Control Act prohibits employers from knowingly hiring or continuing to employ undocumented workers. However, this doesn’t mean undocumented workers are without protections in the workplace. As this case shows, government agencies will enforce laws meant to protect workers, regardless of the workers’ employment eligibility.

As a reminder to employers, undocumented workers are entitled to certain employee rights and benefits including, but not limited to:

• Wage and hour laws (e.g., minimum wage, overtime, tips, etc.)
• Workers’ compensation laws
• Safety and health laws
• National Labor Relations Act (e.g., organize, elect, collectively bargain, engage in protected concerted activity, etc.)
• Antidiscrimination laws (e.g., race, national origin, age, color, disability, sex, etc.)

Undocumented workers are also covered by anti-retaliation provisions related to the above laws. While remedies such as back pay, front pay, and reinstatement may not be available to undocumented workers, the enforcing agencies may still pursue other damages, equitable remedies, and fines against employers who violate workers’ rights.

Takeaway

Employers should take lawful precautions not to employ undocumented workers. If an employer does employ an undocumented worker, it should not hold the employee’s undocumented status as a threat against the employee’s ability to receive the rights, benefits, protections, and working conditions to which all employees are entitled.