Employment Law Daily Employer retaliated against injured employee by facilitating ICE arrest, DOL suit alleges (1)
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Wednesday, March 6, 2019

Employer retaliated against injured employee by facilitating ICE arrest, DOL suit alleges

By Pamela Wolf, J.D.

Purportedly, after the CEO learned that the employee broke his leg falling from a ladder, he arranged to meet the employee and for ICE to detain him afterward.

On March 1, OSHA announced that the DOL has filed a lawsuit against Boston, Massachusetts-based contractor Tara Construction Inc. and its chief executive officer, alleging that they retaliated against an injured employee by facilitating his arrest by immigration law enforcement officers.

Employee reports injury. The employee sustained a broken leg when he fell from a ladder while taping drywall on March 29, 2017, according to the complaint. The employee was taken to the hospital by ambulance. The CEO allegedly visited the employee in the hospital the day he was injured and received information about his injuries from hospital staff.

OSHA made an inquiry into the employer after the accident was referred to the agency by an employee of the Boston Fire Department.

Reporting an injury to an employer and causing an OSHA proceeding to be instituted are protected activities under Section 11(c) of the Occupational Safety and Health Act (OSH Act), which prohibits retaliation against employees because they engage in such activities.

ICE alerted, employee detained. Shortly after the employee engaged in protected activities, the company and the CEO initiated a law enforcement investigation and facilitated the employee’s detainment by U.S. Immigration and Customs Enforcement (ICE), the complaint alleges. The CEO purportedly arranged for the employee to meet him at the Tara Construction office; the employee was arrested immediately after leaving the building.

Although the CEO testified to OSHA that he had no idea how law enforcement knew where the employee would be when he was detained, a law enforcement account indicates that the CEO told an officer present at the arrest when the employee would be at Tara Construction’s office, according to the DOL. The CEO also allegedly advised the officer that he had no objection to the employee’s arrest there.

This account is purportedly supported by text messages and records of about 14 telephone calls between the CEO and law enforcement in the days surrounding the arrest.

An OSHA Whistleblower Protection Program investigation concluded that the defendants’ actions constituted retaliation against the employee for protected activity under the OSH Act and would dissuade a reasonable worker from reporting an injury.

Relief sought. The complaint asks the court to order the defendants to comply with the OSH Act’s anti-retaliation provisions and pay the employee back wages, interest, and compensatory and punitive damages. It also seeks an order requiring that Tara Construction provide a neutral letter of reference, expunge from their files any information regarding the adverse action against the employee in this case, and notify employees of their whistleblower rights under the OSH Act.

“Employees must be able to report injuries and unsafe workplaces without fear that their employers will retaliate,” OSHA Regional Administrator Galen Blanton said in a statement. “OSHA enforces the law to protect all employees and level the playing field for law-abiding employers.”

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