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The NLRB along with the Wage and Hour Division (WHD) of the U.S. Department of Labor, the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), have released a Fact Sheet to the public entitled Retaliation Based on Exercise of Workplace Rights is Unlawful.  The Fact Sheet outlines the protection from employer retaliation that each agency grants employees who choose to assert their workplace rights under the particular statute.  The Fact Sheet is accessible at: https://www.eeoc.gov/eeoc/interagency/fs_retaliation.cfm.   This posting creates no new rights but serves to highlight how the Obama Administration chose to take all steps possible to ensure existing laws were fully enforced.  The posting outlines the following rights:

The Fair Labor Standards Act (FLSA), as enforced by the Wage and Hour Division of the U.S. Department of Labor, establishes minimum wage and overtime protection for workers in the United States.  The FLSA also makes it unlawful for an employer to terminate or otherwise discriminate against an employee in retaliation for filing a complaint with the U.S. Department of Labor or an employer, or who has cooperated in an FLSA investigation.  Workers who lack work authorization are entitled to protection under the FLSA to the same extent as all other workers.

The Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor enforces workplace safety and health regulations and other worker rights under OSHA.  OSHA also prohibits employers from retaliating against employees who assert their rights through OSHA. Workers who lack work authorization are protected under the anti-retaliation provisions enforced by the Act, although there may be some limits on remedies available to them.

The Office of Federal Contract Compliance Programs (OFCCP) enforces laws prohibiting employment discrimination by federal contractors on the basis of race, color, religion, sex, gender identity, sexual orientation, national origin, disability or status as a protected veteran. All of these laws make it illegal to terminate or otherwise retaliate against a person because he or she filed complaints of discrimination. Unlawful retaliation under these laws may include any conduct that might deter a reasonable worker from complaining of discrimination. Workers who lack work authorization are protected under the laws enforced by the OFCCP, although there may be some limits on remedies available to them.

The Equal Employment Opportunity Commission (EEOC) enforces laws prohibiting employment discrimination by employers, employment agencies, or labor unions on the basis of race, color, religion, sex, gender identity, sexual orientation, national origin, age, disability or genetic information. All of these laws make it illegal to terminate or otherwise retaliate against all person because they filed complaints of discrimination.  Unlawful retaliation under these laws may include any conduct that might well deter a reasonable worker from complaining of discrimination. Workers who lack work authorization are protected under the laws enforced by the EEOC, although there may be some limits on remedies available to them.

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA), which protects the rights of most private-sector workers to form, join, or assist a labor organization.  The law forbids employers and labor organizations from interfering with these rights.  Workers who lack work authorization are protected under NLRA, although there may be some limits on remedies available to them, including reinstatement and backpay.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Civil Rights Division of the U.S. Department of Justice enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). This provision prohibits employers from discriminating on the basis of on citizenship, immigration status, national origin, and from retaliating against individuals who assert their rights under the INA.

The Fact Sheet stresses a wrongfully-terminated worker’s right to backpay.  There are two types of backpay: wages for work actually performed and wages awarded for work that would have been performed had the worker not been unlawfully fired.  A worker is always entitled to pay for work actually performed, regardless of immigration status, however, only authorized workers are entitled to backpay for work not yet performed.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com  or 203.454.0560.