There is some good news this week for the rights of undocumented workers.
Over five years ago, in May 2017, I wrote about a worker, Jose Martin Paz Flores, who had broken his leg after falling from a ladder at work. What happened after that sent chills through the the immigrant community.
José Martin Paz Flores had broken his leg after falling off a ladder at work in 2017 and was recovering from surgery when his boss at Tara Construction told him to come to the office because he had some money for him, according to testimony during the week-long trial. But minutes after Paz picked up an envelope containing $500, US Immigration and Customs Enforcement agents arrested him for living in the country illegally, as his 2-year-old son looked on.
He spent nearly two weeks in jail after his arrest and was facing deportation when the Labor Department intervened and launched an investigation. Flores and his wife, Rosa Benitez, had fled Honduras seven years ago because of gang violence there. Three of their five children were born in the United States. In Massachusetts, where Paz worked, undocumented workers are eligible for workers compensation payments. However, Flores’ employer, Tara Construction, had no workers comp insurance the day Flores was injured, raising the obvious question of whether Pedro Pirez, the company owner, had retaliated against Paz because he reported the injury.
Retaliation against workers — even undocumented workers — is illegal under the Occupational Safety and Health Act. Flores filed an anti-discrimination complaint with OSHA and earlier this week, a unanimous jury found that the company had retaliated against Flores and awarded $650,000 in damages – $600,000 in punitive damages and $50,000 in compensatory damages.
“The Occupational Safety and Health Act prohibits employers from retaliating against employees who exercise their rights under the Act, regardless of the employees’ immigration status. This includes reporting injuries and causing an investigation or any proceeding under or related to the Act. This verdict sends a strong message to employers that there will be severe consequences when they violate the law and employee rights,” said OSHA Regional Administrator Galen Blanton in Boston.
Paz is now employed and is a legal U.S. resident.
While this is certainly good news for Paz and all workers, documented or undocumented, it took over 5 years to grant relief. Workers shouldn’t be left hanging for that long. While Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against workers, how many workers are going to risk their jobs by complaining about health and safety hazards if they fear that it will take 5 years or longer to resolve their case?
OSHA enforces 22 anti-retaliation or whistleblower programs and the program is severely underfunded, resulting in a large backlog and lengthy investigations. Furthermore, the anti-retaliation language in the Occupational Safety and Health Act is weak and antiquated compared with more modern whistleblower laws.
For example, the Mine Safety and Health Act, unlike the OSHAct, has provisions for temporary reinstatement of a miner who alleges that he/she has been discriminated against for engaging in protected safety activity. If a miner is fired for engaging in a protected safety activity, Section 105(c)(2) of the Mine Safety and Health Act allows the miner to be “temporarily reinstated” as long as the anti-discrimination case was not “frivolous.” All the miner has to prove is that he/she had a reasonable claim to be reinstated.
The Metro West Worker Center, which supported Mr. Paz, described the ordeal he and his family endured while his case was being considered:
Mr. Paz Flores subsequently spent 12 days in ICE detention, causing him great suffering and threatening his precarious medical recovery. He experienced excruciating physical pain in his leg that was worsened by trying to use crutches while his hands and feet were shackled, as well as the denial of pain medication for several days. His family was plunged into a financial and emotional crisis, suffering devastating fear and anxiety that he could be deported, leaving them without a husband and father. His two-year-old son could not sleep after having seen his father arrested.
An Injury to One is an Injury to all
Upholding the rights of undocumented workers is important for all workers, not just immigrants without papers. Allowing discrimination against undocumented workers just creates a class of intimidated workers who are even more attractive to unscrupulous employers because they can be easily exploited. And, of course, with a class of easily exploitable workers out there, all workers pay the price. Why should I hire a U.S, citizen when I can hire an undocumented worker who won’t get workers comp if he gets hurt and will most likely be too afraid to complain about working conditions?