Wednesday, January 20, 2021
This entry is part 9 of 31 in the series Labor Initiatives
Home #BlackLivesMatter Contractors Ruled Employees In Class Certified Federal Litigation

Contractors Ruled Employees In Class Certified Federal Litigation

This entry is part 9 of 31 in the series Labor Initiatives

The National Association of Mortgage Field Services (NAMFS) just cannot catch a break. Eric Miller, NAMFS Executive Director, has brought the Association to its knees with respect to financial solvency. Miller’s One Hundred and Twenty Two Thousand Dollar a year salary, consuming over Seventy Five Percent of all NAMFS Member dues, has been at the forefront of many conversations in light of Foreclosurepedia’s exclusive release of the NAMFS 2017 Leadership Summit Statistics. For decades Miller, the NAMFS Executive Director, has been in a position to take advantage of and discriminate against Minority Females and Labor. Miller and his NAMFS Offender Members have, for years, combined a practice of withholding federal funds due in contravention of the Service Contract Act and in further violation of the Independent Contractor vs Employee Status Litigation currently ongoing in Bennett Vinson, et al., v AMS and MCS, et al. In the Vinson matter, currently in mediation in the US District Court for the Central District of California, it is being demonstrated that there are no W9 – 1099 Independent Contractors. In fact, Eric Miller knew this as early as May, 2012, when Buczek Enterprises paid six figures to settle Brad Hurst v Buczek Enterprises.

In 2013, Fred and Julia Bowerman filed a lawsuit in the US District Court for the Northern District of California — Bowerman v Field Asset Services Inc. That lawsuit was filed by the very same attorneys, Thomas Duckworth and Monique Olivier, whom filed and won the Hurst Case. The Bowerman’s listed seven points in their suit which was only 17 pages long. That number is important as the Ruling issued by the Honorable William H Orrick was 50 pages long. The seven points were:

  1. Breach of Contract
  2. Breach of Covenant of Good Faith and Fair Dealing
  3. Willful Misclassification of Independent Contractor Status
  4. Failure to Pay Overtime Wages
  5. Failure to Pay Wages for Hours worked
  6. Failure to Indemnify
  7. Violations of the Unfair Competition Law

The Bowerman case was filed less than a year after the Hurst victory, one would have thought that Eric Miller and his ALL WHITE financial terrorist NAMFS Board of Directors would have taken note. Not a single word has ever been made pertaining to the illegality of NAMFS Member operations. In fact, Miller’s silence on the matter appears to have occurred in hopes of facilitating the criminal activities of NAMFS Members and financially motivated. I say financially motivated as if Miller and his ALL WHITE Board of Directors advised their members of their illegal actions, NAMFS revenues could have conceivably dropped even lower than they have over the past four year’s worth of losses.

The Honorable William Orrick kicked off his ruling by saying,

This is a classwide misclassification case involving vendors who perform property preservation services in California for Field Asset Services, Inc. […] The overwhelming weight of the evidence supports a finding that FAS retained and, more often than not, actually exercised a right to control the manner and means of the vendors’ work. While some of the secondary factors for evaluating proper classification fall in FAS’s favor, they cannot overcome the powerful evidence of control that establishes that the vendors are employees as a matter of law. A reasonable jury could not return a verdict for FAS on that issue. Accordingly, plaintiffs’ motion for partial summary judgment is GRANTED as to FAS’s affirmative defense that the vendors are independent contractors and as to its liability for failing to pay overtime and business expenses.

So, let’s talk a little bit about how historic this case is and its implications for the Vinson matter which is currently pending against Mortgage Contracting Services (MCS) in the US District Court for the Central District of California and additional litigation which will soon commence against not only additional NAMFS Members, but will potentially wreak havoc upon the US Department of Housing and Urban Development‘s (HUD) Performance Work Statement (PWS) under the Marketing and Management (M&M) Field Service Manager (FSM) 3.10 offering.

As early as Page Two in the Factual Background, the Court makes clear that the Secret Sauce which NAMFS Members maintain — forbidding clients from contacting Vendors and hiring them directly — is a type of exclusivity which is a tell tale sign of employee status. Moreover, though, the Court drills down heavily in the Hunter Deposition wherein FAS required, Completion of training prior to receiving work orders. The Court additionally notes that proprietary mobile applications are required and that FAS created a Vendor Profile on each person whom applied for work. The Court notes, by citing the Vinson Deposition, that, Vendors performing certain services are required to post a notice, provided by FAS through a work order, that the property is maintained by FAS.

Although vendors were permitted to “bid” on additional work that they discovered needed to be performed on a property, plaintiffs contend that “bidding” is a misnomer because the price had to match up with FAS’s bid sheet, or it would not get approved. E.g., Cohick Dep. at 93:19–94:10 (Dkt. No. 188-4).

The Court digs deep when it speaks to the legality and importance of vendor scorecards. Used by all Regional and National Order Mills, here is what the Ruling had to say,

FAS uses “vendor blasts … to communicate information that could apply to a large group of vendors.” Hunter Dep. at 295:5–7; see also Valentino Dep. at 71:16–23 (Miller Decl., Ex. 10, Dkt. No. 196-11). Examples of “vendor blasts” include a pricing guideline for submitting invoices for lawn service, Valentine Email (Miller Decl. ¶ 13, Ex. 10, Dkt. No. 196-11), and a Letter regarding changes to Vendor Scorecards. Duckworth Decl., Ex. 16 (Dkt. No. 155-17). The “metrics” captured in the scorecards includes: on time completion percentage, inspections scores, broker signoff score, work order response time, vendor work order acceptance, QC approval percentage, and photo request percentage. Id. FAS’s PMK frames the scorecards as “primarily a tool for the vendor to use and being able to manage their businesses and to see how certain areas they were doing.” Hunter Dep. at 225:16–18. But the vendor blast notifying vendors of changes to the scorecard system discloses that FAS is “increasing the number of metrics we will look at to assess your performance.” Ex. 16 (Dkt. No. 155-17). While FAS maintains that it stopped using the scorecard system sometime in 2013, Hunter Dep. at 226:8–10, plaintiffs point to evidence that the system was used as late as December 2016. Olivier Decl. ¶ 82, Ex. 70, Dkt. No. 191-71[placeholder]; Dkt. No. 190-4 [unredacted version filed under seal].

As early as 2015, the Court had identified nearly 680 people whom fit the overall characteristics of being disenfranchised and misclassified by National Association of Mortgage Field Services (NAMFS) Member, FAS. Within the first 10 pages of the Bowerman Ruling, the Court begins to key on the illegal training ongoing with respect to differentiation between Independent Contractor and Employee. In fact, more and more NAMFS members are not just suggesting it, they are demanding it. As far as I know, not a single National or Regional Order Mill comes to mind that does not require mandatory training in order to receive work. This is extremely serious when we look to the simple and salient fact that Denia Graham is demanding Minority Females and Labor submit to mandatory training to perform services upon Wells Fargo assets. And whom would financially benefit? That’s right, Eric Miller and his ALL WHITE Board of Directors at NAMFS.

Plaintiffs point to “mandatory training” provided by FAS—pertaining to FAS proprietary software and also to the specific tasks performed by vendors. 2013 VQP (“Completion of training is required prior to receiving work orders.”)(emphasis in original)(Dkt. No. 155-7 at 3); see also FASTrack Mobile Training (Duckworth Decl. Ex. 13, Dkt. No. 155-14); Winterization Training (Duckworth Decl. Ex. 14, Dkt. No. 155-15); Email Exchange Re: Mandatory Training Follow Up and Authenticating Dep. (Dkt. No. 196-34); Mezin Dep. at 91:1–22. FAS counters with vendor testimony that they were never offered any training. Opp’n to MSPJ at 9 n.18. However, FAS’s own marketing material indicates that it provides “initial and ongoing training.” Our National Vendor Network (Duckworth Decl. ¶ 7, Ex. 4, Dkt. No. 155-5).15 Its PMK states that “FAS offers certain informational sessions to the vendors which we call REO Training Wagons.” Hunter Dep. at 282:7–9 (Dkt. No. 198-4). These training wagons are offered “approximately a dozen [times] per year per region.” Id. at 282:12–13. Although FAS insists that these trainings were not mandatory, they are labeled as “MANDATORY.” Id. at 282:17–25; see Personal Invitation to the REO Training Wagon and Authenticating Dep. (Dkt. No. 196-35).

15 This document also notes that FAS “handle[s] every detail of the vendor relationship,” and “[o]ur technology and our expertise enable us to scrutinize every order from placement to completion. This enables us to measure every vendor on every step of every job.” Our National Vendor Network (Duckworth Decl. ¶ 7, Ex. 4, Dkt. No. 155-5).

The International Association of Field Service Technicians (IAFST) has been attempting to advise Clients upon the dangers of both forcing alleged Independent Contractors to submit, free or compensated, to training specific to the Client and providing materials. Cyprexx currently is providing InvisiBoard to their alleged Independent Contractors. Moreover, though, many Order Mills are providing materials ranging from locksets and smoke detectors to stickers and pool covers either free of charge or at dramatically reduced pricing. On this point, Foreclosurepedia reached out to the IAFST for comment and received this,

The IAFST has long realized that the only legal way to assist in the training of Field Service Technicians (FST) is by and through a legal, third party Association. And while there are other flavors of training out there, our modules are designed and built by those currently working in the field. With quarterly updates, we are staying far ahead of issues, such as these, and our Membership was well aware of the problems as early as Q2 of last year. This allowed us to partner with Clients in the creation of a wide array of educational modules and certifications not only impacting the field services themselves, but also to allow for our Membership to learn the dynamic processing systems which Vendors must utilize to liaise with the Clients. — IAFST Board of Directors

FAS, or now as they are known, Assurant Field Asset Services, took great pains to argue their case in much the same way in which NAMFS Members attempt to deprive Minority Females and Labor by and through their illegal and unjust enrichment scheme known as chargebacks. In this, I mean that the Court had had enough of the repetitive insanity which was not based in the law,

This marks the third time that FAS has identified its “concern that vendors’ business operations were so varied that there could be no common answer regarding independent contractor status under the multi-factored, interdependent Borello test.” Mot. to Decertify at 19. I found before that “[c]ommonality is satisfied here.” Certification Order at 24. I explained, “[t]he key legal issue underlying this case is whether putative class members were misclassified under California law as independent contractors instead of employees[,]” and “this is a common question that is capable of a common resolution for the class.” Id. Although FAS urges that “the more fulsome record [post-discovery] demonstrates far broader variation among potential class members…,” its arguments are not persuasive. Id. Nonetheless, I will address its points in turn.

It is “the defendant’s right to control the manner and means by which the plaintiff’s work is accomplished, rather than the amount of control actually exercised [that] is the principal factor in assessing whether a plaintiff is an employee or an independent contractor.” Id. at 6 (citing Ayala v. Antelope Valley Newspapers, Inc., 59 Cal. 4th 522, 533–34 (2014)). Of particular relevance to FAS’s right to control is the agreement defining the relationship between the parties. See, e.g., VQPs (Dkt. Nos. 155-18; 155-35 – 155-40). While FAS insists that “there is no single contract at issue during the class period[,]” I have already found “that all vendors execute the same or similar independent contractor agreements with at-will termination provisions, and that vendors performing property preservation work are expected to comply with highly detailed job specifications.” Certification Order at 15 (footnote omitted).

Plaintiffs emphasize “the most significant consideration,” Ruiz, 754 F.3d at 1100, and insist that “[e]xtensive evidence confirms that [FAS] maintains a right of control through uniform policies and practices detailing how work is to be done and consequences when it is not done the way FAS wants.” Opp’n at 6. Plaintiffs cite to (1) work orders dictating the precise manner in which specific tasks are to be performed and the price to be paid; (2) mandatory training on FAS’s proprietary software, as well as “step-by-step instruction on how to perform particular types of work[;]” (3) standardized methods of supervising vendors’ work, including through email updates, photo documentation, and quality control site inspections; and (4) uniform right to discipline vendors whose performance does not meet FAS standards.

The fact that FAS could not identify precedent tracking its reasons against certification is telling.

NAMFS Members, with Eric Miller at the helm, seek to obliterate any discussion with respect to either legality or the rights of Minority Females and Labor, within the Mortgage Field Services Industry. The ALL WHITE NAMFS Board of Directors which Eric Miller controls represents the One Percent Oligarchy which brutally stomp out all resistance by and through financial terrorism. In fact, Minority Females and Labor are stuck in a netherworld of Stockholm Syndrome — Battered Contractor Syndrome — much like slaves to a Southern Plantation Master. The parallels are hauntingly similar to the South at the beginning of the Civil War. Chained to a perpetual cycle of abuse and fear, Minority Females and Labor have been forced to never complain nor fight for their rights as NAMFS Members will begin an illegal campaign of chargebacks ensuring that even the children of those working go hungry.

Reinforcing Eric Miller’s command and control over his Membership, the former and now bankrupted NAMFS Secretary, Heather Berghorst, was capable of committing over One Million Dollars of fraud against Minority Females and Labor. Instead of stepping in, Eric Miller personally protected Berghorst and in fact I argue furthered Berghorst’s ability to fleece even more from those whom could least afford it. It is par for the course, though. Miller projects the quintessential white supremacist with his bald head and jutting chin. Miller, for all intents and purposes, appears only happy when his NAMFS Members are committing atrocities against honest, hard working Minority Females and Labor. Never, in over a decade, has Miller or his ALL WHITE Board of Directors, investigated a single claim against one of theirs.

The Court takes great pains to clearly describe material facts which are present with each and every NAMFS Member present in the Mortgage Field Services Industry today,

FAS asserts that it does not dictate who does the work, when it gets done, or how it gets done. Opp’n at 6–11 (Dkt. No. 189). And from this conclusion it insists that “vendors – not FAS – retain and exercise the right to control most every aspect of their performance of the contracted services.” Id. at 11. But FAS’s statements run counter to all of the evidence giving it the right to control. As plaintiffs state, “FAS tells Vendors where to go, when to go, what to do, when to get it done, and how much and when they will be paid for their efforts.” Reply ISO MPSJ at 1(Dkt. No. 196). I agree with plaintiffs’ assertion that, “No reasonable juror could review the Vendor Packets, the work orders, the trainings, the Vendor Profiles, the discipline, and the Vendor scorecards, and conclude any of the Vendors are independent contractors.” Id.; see also MPSJ at 15–24.

In probably the largest blow to Assurant Field Asset Services and the entire NAMFS Membership is the following statement which the Honorable William Orrick made with respect to controlling when a work order must be completed,

I find that FAS’s argument that it does not control when vendors perform work disingenuous. FAS requires work to be performed within three days of receiving a work order. That it does not dictate the precise hours during which the work must be performed is inconsequential.

We all remember the money grab which Eric Miller and Jim Taylor, Wells Fargo, put together with respect to forcing Minority Females and Labor pay nearly One Hundred Dollars for a background check performed by Aspen Grove Solutions, yet another NAMFS Member. More on point, though, that very same background check which Aspen Grove Solutions performs for the State of Arizona only costs seven dollars. Here is what the Court had to say,

Second, FAS requires vendors to administer “background screening guidelines” for any employee a Vendor utilizes for an FAS job. See, e.g., 2014 Vendor Qualification Packet (Duckworth Decl. ¶ 9, Ex. 6, Dkt. No. 155-7 at 11). And it retains the right to request the results of vendors’ screenings and conduct background checks of vendors’ employees “at its sole discretion.” Id. (Dkt. No. 155-7 at 12). This further supports plaintiffs’ position. Borello, 256 Cal.Rptr. 543, 769 P.2d at 408 n. 9 (holding that a contract provision restricting sharefarmers’ right to choose employees evidenced defendant’s right to control sharefarmers); Ruiz, 754 F.3d at 1102–03 (“While the district court found that approval was largely based upon neutral factors, such as background checks required under federal regulations, it is still true that the drivers did not have an unrestricted right to choose these persons, which is an ‘important right[ ] [that] would normally inure to a self-employed contractor.”).

And how about the control which NAMFS Members exercise over Minority Females and Labor with respect to managing them within proprietary, electronic repositories,

The vendor profiles demonstrate that FAS not only retained the right to control the vendors but actually exercised that control through extensive supervision and a regimented discipline program. And if vendors failed to comply with the direction of FAS field team inspectors, they faced penalties. This is strong evidence of a right to control.

The irony of the greed which Eric Miller oversaw is that NAMFS Members created an extremely sophisticated and complex set of contracts, reinforced by threats of litigation, to insulate financial institutions, government sponsored enterprises, and the US Government by and through agencies such as the US Department of Housing and Urban Development (HUD), the US Marshals, the Federal Deposit Insurance Corporation (FDIC), and Veterans Affairs. How the scheme worked was that firms like MCS and Safeguard Properties — really, though, you could enter any NAMFS Member here — would go out and recruit a Member of Labor. After binding them to all sorts of illegal actions like Waiver of Liens and Inability to Directly Contact the Client, they accomplished the removal of the Doctrine of Privity between Labor and the end Client.

Here is how the Court responded to precisely this issue,

Plaintiffs contend that the work performed by vendors is “wholly integrated” into FAS’s operation, and as such, the vendors are not engaged in a distinct business occupation. MPSJ at 21 (citing Alexander, 765 F.3d at 995); Reply at 9. They highlight evidence that vendors (1) could not interact directly with FAS clients;39 (2) were required to do work according to FAS specifications;40 (3) had to post a sign on properties indicating “Maintained By Field Asset Services, LLC” (or similar notice);41 (4) had to add FAS as an additional insured on General Liability, Auto Liability, and excess policies for ongoing and completed operations;42 and (5) were required to waive their right to file a lien on an FAS-serviced property.43 MPSJ at 21. It is undisputed that vendors were prohibited from communicating directly with clients and with each other. This limits the persuasiveness of the argument that they controlled distinct businesses [… .]

Bearing in mind that there are several other Rulings coming down the pike over the next month or so, the largest of which will be the Vinson v MCS on nearly identical issues, the reality is that the US Department of Housing and Urban Development (HUD) and its Marketing and Management (M&M) Field Service Manager (FSM) 3.10 offering may be in jeopardy. For years, Foreclosurepedia has argued that Contractors are being stolen from with respect to application of the Service Contract Act (SCA). In essence, SCA requires that prevailing wages be paid; that health benefits be paid; and that paid time off be afforded to those whom work upon federal projects. Craig Karnes, the HUD M&M FSM Director has been loathe to wade into the weeds on the matter and generally has referred most issues over to the US Department of Labor (DoL). The Performance Work Statement (PWS) which HUD rolled out for the M&M FSM 3.10 makes the Bowerman case look mild with respect to command and control.

Please tune in for tonight’s Foreclosurepedia Podcast live on the Foreclosurepedia Radio Network. Please continue to support Foreclosurepedia by Donating today! We thank those whom do and remember those whom benefit from us and do not!

[tnc-pdf-viewer-iframe file=”https://foreclosurepedia.org/wp-content/uploads/2017/03/Bowerman-v-Field-Asset-Services.pdf” width=”800″ height=”800″ download=”false” print=”false” fullscreen=”true” share=”true” zoom=”false” open=”false” pagenav=”true” logo=”false” find=”true” language=”en-US” page=”” default_zoom=”auto” pagemode=””]

logos for DOJ, DOL, NLRB, and EEOC

Fact Sheet: Retaliation Based on Exercise of Workplace Rights Is Unlawful

Federal agencies responsible for enforcing workers’ rights seek to protect all workers from exploitation and violations, regardless of immigration status.  Many workers, however, are deterred or prevented from asserting workplace rights for fear of retaliation.  In some cases, employers may exploit immigration status to discourage workers from asserting their rights.  U.S. laws generally prohibit employers from retaliating against workers for exercising their workplace rights, regardless of the workers’ immigration status.  Effective enforcement of labor and employment laws requires that the enforcement process be insulated from inappropriate manipulation by parties who seek to prevent workers from exercising their rights or retaliate against them when they do.  This fact sheet clarifies that retaliation against workers who assert workplace rights is unlawful, regardless of the workers’ immigration status.

Retaliation Under the Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime protections for many workers in America, and it is enforced by the Wage and Hour Division of the U.S. Department of Labor.  The FLSA also prohibits retaliation against any person who has filed a complaint with the Department or an employer (orally or in writing) or cooperated in an FLSA investigation. Protecting workers from retaliation and ensuring that they do not face threats or intimidation for exercising their rights is an important priority for the Wage and Hour Division.

Workers who lack work authorization are entitled to minimum wages and overtime pay for hours worked under the FLSA to the same extent as other workers.  It is unlawful for an employer to terminate or in any other manner discriminate against workers in retaliation for asserting minimum wage or overtime claims (which can include pay issues such as deductions or tips) or cooperating with an FLSA investigation.  These protections apply regardless of immigration status.  For example, it would be unlawful for an employer to report an undocumented worker to immigration authorities in retaliation for filing a wage claim.  Some remedies for retaliation violations may be limited for workers without work authorization.

For additional information, please see Wage and Hour Division Fact Sheet # 77A: Prohibiting Retaliation Under the FLSA or visit the Wage and Hour Division website: http://www.wagehour.dol.gov.  To file a complaint regarding wage violations or retaliation call the toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).  Language services are available and calls are confidential.

Retaliation Under Laws Enforced by the Occupational Safety and Health Administration

The Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor enforces workplace safety and health standards and regulations and other worker rights under the Occupational Safety and Health (OSH) Act.  The OSH Act prohibits employers from retaliating against employees for exercising their rights under the OSH Act.  These rights include 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.  It is unlawful for an employer to terminate workers in retaliation for asserting OSH Act claims or cooperating with an OSHA investigation, regardless of immigration status.  In addition, OSHA enforces the whistleblower provisions of 21 other laws protecting employees who report violations related to environmental and nuclear safety, transportation industry, as well as consumer and investor protections.  Workers who lack work authorization are protected under the anti-retaliation provisions enforced by OSHA, although there may be some limits on remedies available to them.

For additional information, please visit the OSHA website:  http://www.whistleblowers.gov (also available in Spanish at http://www.whistleblowers.gov/index_sp.html).  To file a complaint regarding workplace safety, please visit: http://www.osha.gov/pls/osha7/eComplaintForm.html (also available in Spanish at http://www.osha.gov/pls/osha7/ecomplaintform_sp.html); to file a complaint regarding retaliation please visit: http://www.whistleblowers.gov/complaint_page.html (also available in Spanish at http://www.whistleblowers.gov/complaint_page_sp.html).

Retaliation by Federal Contractors Under Equal Employment Opportunity Laws Enforced by the Department of Labor’s Office of Federal Contract Compliance Programs

The Office of Federal Contract Compliance Programs (OFCCP) enforces laws prohibiting employment discrimination by federal contractors (companies doing business with the federal Government) on the basis of race, color, religion, sex (including pregnancy and related medical conditions), gender identity (including transgender status), sexual orientation, national origin, disability or status as a protected veteran. All of these OFCCP-enforced laws make it illegal to fire, demote, harass, or otherwise retaliate against people (applicants, employees, or former employees) because they filed complaints of discrimination with OFCCP, because they complained to their employers or others about discrimination on the job, or because they participated in any activity related to the administration of the laws enforced by OFCCP (such as a complaint investigation or contractor compliance evaluation) or in any activity related to the administration of any other law federal, state or local law requiring equal employment opportunity. Unlawful retaliation under OFCCP-enforced laws may include any conduct that might well deter a reasonable worker from complaining of discrimination. These laws apply to every person, regardless of his or her immigration status, although some remedies may be limited for workers without work authorization.

For additional information, please visit the OFCCP website: http://www.dol.gov/ofccp or call the toll-free Help Desk line at 1-800-397-6251. To file a complaint of discrimination or retaliation, complete the complaint form, available in several languages, on the OFCCP website.

Retaliation Under Title VII of the Civil Rights Act, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act 

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 (including pregnancy and related medical conditions, gender identity (including transgender status) and sexual orientation), national origin, age (40 or older), disability or genetic information.  All of these EEOC-enforced laws make it illegal to fire, demote, harass, or otherwise retaliate against people (applicants, employees, or former employees) because they filed charges of discrimination with EEOC, because they complained to their employers or other covered entities about discrimination on the job, or because they participated in employment discrimination proceedings (such as an investigation or lawsuit).  Unlawful retaliation under EEOC-enforced laws may include any conduct that might well deter a reasonable worker from complaining of discrimination. These laws apply to every person, regardless of his or her immigration status, although some remedies may be limited for workers without work authorization.

For additional information, please visit the EEOC website: http://www.eeoc.gov.  To file a charge of discrimination or retaliation you should contact your nearest EEOC office or call 1-800-669-4000.  In addition you can complete an online assessment at http://www.eeoc.gov/employees/howtofile.cfm.

Retaliation Under the National Labor Relations Act

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, decertify, or assist a labor organization (union), and to bargain collectively through representatives of their own choosing, or to refrain from such activities.  Employees may also join together to improve terms and conditions of employment without a union.  The law forbids employers from interfering with employees in the exercise of rights to form, join or assist a labor organization for collective bargaining, or from working together to improve terms and conditions of employment, or refraining from any such activity.  Similarly, labor organizations may not interfere with employees in the exercise of these rights.

Workers who lack work authorization are covered by the protections of the NLRA, including protection against retaliation.  However, reinstatement and backpay are not available as legal remedies for employees who do not have work authorization.  See section below, Are Workers Who Lack Work Authorization Entitled to Backpay?

For additional information, please visit the NLRB website: http://www.nlrb.gov.  To file a charge regarding violations or retaliation against an employer or labor organization, you have a number of options.  You may call the toll-free information line at 1-866 667-NLRB (6572), which will transfer you to a local NLRB field office.  You may also visit a local NLRB field office during its regular business hours or mail a charge to a local NLRB field office.  You can find a NLRB field office directory with contact information and hours of operation at https://www.nlrb.gov/who-we-are/regional-offices, and charge forms at https://www.nlrb.gov/resources/forms. You may also e-file a charge through the NLRB’s website at https://apps.nlrb.gov/eservice/efileterm.aspx?app=chargeandpetition.

Retaliation Under 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 U.S. Department of Justice enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). This provision prohibits employers from discriminating in hiring, firing, or recruiting or referring for a fee based on citizenship or immigration status; discriminating in hiring, firing, or recruiting or referring for a fee based on national origin by employers that fall outside of the EEOC’s jurisdiction; discriminating in the process of verifying a worker’s employment eligibility (the Form I-9 and E-Verify processes) based on national origin or citizenship status; and retaliation or intimidation against individuals who file charges with OSC, cooperate with an OSC investigation, contest action that may violate the law, or assert rights on behalf of themselves or others under the INA’s anti-discrimination provision.

For additional information, call OSC’s Worker Hotline at 1-800-255-7688, 9 a.m. to 5 p.m., Eastern (TTY for the hearing impaired: 1-800-237-2515).  Callers can remain anonymous and language services are available.  You can also visit http://www.justice.gov/crt/about/osc for more information on OSC and the law it enforces.  For information on filing a charge, visit http://www.justice.gov/crt/filing-charge.

The Department of Labor’s Wage and Hour Division enforces the worker protections in the H-1B (high skilled temporary workers), H-2A (temporary agricultural workers), and H-2B (temporary non-agricultural workers) nonimmigrant visa programs.  Employers of H-2A workers and H-2B workers generally may not intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate in any manner against any person who has filed a complaint, testified or is about to testify in a proceeding, consulted with an attorney or legal assistance program, or exercised or asserted any right or protection under these programs or the INA on behalf of himself/herself or others. Employers may not retaliate or discriminate against H-1B workers who disclose violations or cooperate in proceedings concerning the employer’s compliance with the program.

To file a complaint regarding retaliation in nonimmigrant visa programs, call the toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).  Language services are available and calls are confidential.

Are Workers Who Lack Work Authorization Entitled to Backpay?

“Backpay” generally includes two categories of wages: (a) wages earned for work performed, and (b) wages awarded for work that would have been performed if the worker had not been unlawfully fired.  Workers who lack work authorization always have the right to the first category of backpay, or those wages they have earned for work performed, as well as certain other remedies as appropriate under labor and employment laws.

There are some limits on the second category of backpay, or wages for workers who lack work authorization with regard to work that has not been performed.  The U.S. Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), that the NLRB could not award backpay to an unauthorized worker who had been unlawfully discharged in retaliation for his involvement in a union organizing campaign for work that would have been performed if the worker had not been unlawfully fired. By contrast, if a work-authorized worker is unlawfully fired, that worker generally can be awarded backpay for work that would have been performed if the worker had not been fired.  A worker is always entitled to pay for work actually performed, regardless of immigration status.

For additional information about remedies, please see:

NLRB General Counsel Memoranda:

  • GC 15-03 Updated Procedures in Addressing Immigration Status Issues that Arise During Unfair Labor Practice Proceedings
  • GC 98-15 Reinstatement and Backpay Remedies for Discriminatees Who May Be Undocumented Aliens In Light of Recent Board and Court Remedies
  • GC 02-06 Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc.

U.S. Department of Labor, Wage and Hour Division Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage and Hour Division

Series Navigation

<< Arbitration For Disputes May Interfere With Labor RightsIs Eric Miller Guilty Of Federal Misclassification Laws? >>

Paul Williamshttps://foreclosurepedia.org
Linux addict buried deep in the mountains of East Tennessee.

Most Popular