NLRB, EEOC and DOL Issue Joint Fact Sheet on Retaliation

 In

The National Labor Relations Board, the Equal Employment Opportunity Commission, and the Department of Labor (along with two of its sub-agencies – the Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration) issued a joint Fact Sheet, “Retaliation Based on the Exercise of Workplace Rights Is Unlawful.” The Fact Sheet, which is available in 14 languages in addition to English, explains that the agencies will protect all employees from retaliation by employers for exercising workplace rights.

A theme that runs throughout the Fact Sheet is unauthorized/undocumented workers. The Fact Sheet repeatedly emphasizes that a worker’s immigration status is irrelevant to the protections of the various workplace laws administered by these agencies, although in some cases, it may affect the remedies available. The Fact Sheet reviews the following laws:

  • The Fair Labor Standards Act – workers are protected from retaliation for asserting minimum wage and overtime claims, or for cooperating in an FLSA investigation.
  • The Occupational Safety and Health Act – the law prohibits retaliation for exercising rights under OSHA, including 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.
  • Whistleblower laws enforced by OSHA – these laws protect workers from retaliation for reporting violations related to these laws.
  • Equal Employment Opportunity Laws enforced by the OFCCP – employees are protected from retaliation because they filed complaints of discrimination with the OFCCP, their employer or others, or they participated in a discrimination investigation or contract compliance evaluation, or engaged in activity related to the administration of other EEO laws.
  • Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act – under these laws, which are enforced by the EEOC, employees are protected from retaliation if they filed charges of discrimination with the EEOC, complained to their employers or other covered entities about discrimination, or participated in an investigation or lawsuit.
  • The National Labor Relations Act – employees may not be subjected to retaliation for exercising their rights to form, join or assist a labor organization for collective bargaining, working together to improve terms and conditions of employment, or (conversely) refraining from such activity.
  • The Immigration and Nationality Act and Certain Nonimmigrant Visa Programs – the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Civil Rights Division of the Department of Justice enforces the anti-discrimination provisions of the INA. Employees are protected from retaliation for filing discrimination charges with the OSC, cooperating with an OSC investigation, contesting potential violations of the law, or asserting INA rights on behalf of themselves or others. The DOL’s Wage and Hour Division enforces the worker protections in the H-1B, H-2A, and H-2B visa programs. Employers may not retaliate against H-2A and H-2B workers who file a complaint, testify in a proceeding, consult with an attorney or legal assistance program, or assert INA or visa program rights on behalf of themselves or others. H-1B workers are protected from retaliation for disclosing program violations or cooperating in compliance proceedings.

The Fact Sheet provides resources on the remedies that may be recovered for violations of these anti-retaliation prohibitions.