A National Labor Relations Board (NLRB) Regional Director is pursuing a set of complaints against a Maryland-area contractor, accusing the contractor of retaliating against immigrant employees for bringing a Fair Labor Standards Act (FLSA) action and attempting to unionize.  The matter has drawn the attention of local politicians and interest groups calling for additional workplace protections for undocumented workers.

The complaints accuse the contractor of retaliating against one group of workers for bringing an FLSA action for unpaid overtime.  The complaints further assert that these and other workers faced retaliation, including discipline and termination, for seeking to organize a union.  The Regional Director claims this alleged conduct violates the National Labor Relations Act (NLRA), which prohibits, among other conduct, retaliation against employees for “concerted” protected activity, such as seeking redress for wage issues, and efforts to organize a union, even if the employer is not already unionized.  Among other relief, the Regional Director seeks back pay and authorization for the union to have access to employee contact information and workplace bulletin boards.  The contractor, however, denies the allegations, claiming the actions taken against the employees were for legitimate, non-retaliatory reasons.  A hearing on the complaints began on August 4 before an NLRB administrative law judge and the decision remains pending.  (Information concerning the case can be accessed on the NLRB’s website, by clicking here).

Although numerous federal laws extend their protections to employees without work authorization, local politicians and interest groups have now called for additional protective measures, including continued action by the NLRB to ensure undocumented employees have the ability to organize and participate in unions.  As previously reported by Littler Mendelson, California has already enacted legislation prohibiting retaliation against undocumented employees who engage in activities protected by state law, including filing wage-and-hour complaints with a local agency. 

These developments underscore that with limited exceptions, such as the inability to recover front pay or obtain reinstatement, employees without work authorization will continue to enjoy many of the same protections held by those authorized to work in the United States, including the ability to engage in concerted protected activity and participate in union organization.