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Threatening Employees Based on Their Immigration Status Can Constitute Unlawful Retaliation Under Wage and Hour Laws

Posted August 26th, 2021 by Kate MacMullin in Retaliation Law.

When an employee complains about an employer’s violation of wage and hour laws, anti-retaliation protections often kick in to protect the employee from being punished for complaining. Obvious examples of retaliation include firing or demoting the employee who complains. However, an employer’s retaliatory actions may also extend beyond the workplace. In some cases, the employer may try to use the employee’s immigration status as a tool to dissuade them from pursuing their claims. Fortunately, several courts have found that this kind of conduct can constitute unlawful retaliation.  

Many courts across the country have held that federal and state wage and hour laws prohibit employers from using an employee’s immigration status to threaten them after they complain. Courts have held that the following actions by an employer can give rise to a claim for retaliation:  

  • Reporting former employees to the Immigration and Naturalization Service (“INS”) and making false allegations to the government that they were “terrorists” after learning that they had filed a lawsuit under the Fair Labor Standards Act (“FLSA”). Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 136 (W.D.N.Y. 2003
  • Reporting an undocumented employee to the INS after the employee filed a wage claim against the employer with the state labor commissioner. Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 1062 (N.D. Cal. 2002)
  • After being served with Mexican-born employee’s overtime complaint, suggesting that the employee accept a settlement of his case that would include a “one-way ticket” to Mexico, warning the employee that the employer could have him deported, and demanding that the employee fill out an I-9 form, which would have implicated his immigration status. Bartolon-Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335, 1338–39 (S.D. Fla. 2015)
  • Sending text messages to a former employee threatening to report him to government immigration services after the employee commenced an action under the FLSA. Guohua Liu v. Elegance Rest. Furniture Corp., No. 15-CV-5787, 2017 WL 4339476, at *5 (E.D.N.Y. Sept. 25, 2017)

Some state wage and hour laws also explicitly prohibit this kind of retaliation. For example, under the New York State Labor Law, retaliation is expressly defined to include “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member . . . to a federal, state, or local agency.” N.Y. Lab. Law § 215(1)(a).

An employee’s immigration status should never be used to prevent them from availing themselves of their rights under wage and hour laws. If you believe that you have experienced retaliation from your employer after complaining, you should consult with an attorney to determine what your legal options are. Sanford Heisler Sharp, LLP has experienced lawyers in New York, Washington, DC, San Francisco, San Diego, Tennessee, and Baltimore.

Kate MacMullin is an Associate in the New York office of Sanford Heisler Sharp, LLP, a national law firm with offices in Washington, DC, New York, California, Tennessee, and Maryland. She received her B.A. magna cum laude from Brown University and her J.D. magna cum laude from Harvard Law School.
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