Several federal agencies (including the NLRB, DOL, OSHA, and EEOC) have issued a joint fact sheet explaining that the agencies will protect employees from retaliation by employers because the employee has attempted to assert his/her workplace rights regardless of the employee’s immigration status. The joint publication notes that in some cases, employers may exploit immigration status to discourage workers from asserting their rights, but federal laws (including the FLSA, OSHA, Title VII, ADA, and INA) generally prohibit unlawful retaliation by employers against employees who have filed agency complaints or cooperated in investigations, among other protected activities. Additionally, the NLRA forbids employers from interfering with employees in the exercise of rights to join a labor organization for collective bargaining or from working together to improve terms and conditions of employment, including retaliation against employees participating in or refraining from any such activity.

All employees are entitled to the protections afforded under these federal laws regardless of their immigration status, including workers who lack work authorization (though some remedies for violations may be limited for workers without authorization). Like all other employees, workers who lack authorization are always entitled to payment of wages earned for work actually performed. However, the joint publication notes there are some limits on unauthorized workers’ ability to recover other back pay (for wages that would have otherwise been performed if the worker had not been unlawfully fired).

The fact sheet, entitled “Retaliation Based on Exercise of Workplace Rights is Unlawful,” is available from the NLRB’s website in several languages.

By Rebecca D. Stanglein, rstanglein@dsda.com