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Retaliation Using ICE as a Weapon.

Retaliation Using ICE as a Weapon

April 4, 2019

On March 1, the Occupational Safety and Health Administration (OSHA) announced that the Department of Labor (DOL) sued 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.

Jose Martin Paz Flores (Paz) was taping drywall on March 29, 2017, when he fell from a ladder and broke his leg.  He was taken to the hospital by ambulance where the CEO and Defendant in this case, Pedro Pirez, visited the same day and received information about his injuries from hospital staff.  Paz told Pirez that he was going to need help in paying for his medical bills when they spoke that day.  Well before that date, Pirez had already received notice that Tara Construction’s insurance policy had been cancelled for non-payment of their premium.

OSHA made an inquiry into the employer after finding out about Paz’s fall from an employee of the Boston Fire Department who responded to the accident.

In early April 2017, the hospital contacted Pirez a few times asking about the coverage for “Jose Martin Paz Flores” and inquired why Tara Construction’s insurance policy did not seem active.  At one point, the hospital called asking about a “Jose Paz”.  Pirez used Paz’s four names as a pretense for the problem and later as a means of pursuing an investigation with law enforcement.

Two to three weeks after the start of the OSHA inquiry, Pirez contacted a Boston Police Detective and asked him to look into Paz’s identity and immigration status.  He provided the Detective with Paz’s identifying documents.  The Detective eventually contacted an Immigration and Customs Enforcement (ICE) Sergeant Detective and passed along Paz’s personal information, keeping Pirez informed.

On May 10, 2017, Paz arrived at Tara Construction with his two-year old son in tow because Pirez had called and offered to give Paz five hundred dollars to help with his medical bills.  As Paz drove away, he was stopped and taken into custody by ICE agents.

Although Pirez told OSHA that he had no idea how law enforcement knew where the employee would be when he was detained, a statement from an officer on the scene indicated that the CEO told the officers present at the arrest when the employee would be at Tara Construction’s office.

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.

The OSHA investigation found that the Defendant Pirez has a history of demonstrating hostility toward workers around issues of workplace safety and that there was a motive for him to take adverse action against Paz.  OSHA concluded that Pirez’s alleged confusion regarding Paz’s identity was not plausible since the Defendant was in possession of multiple documents that showed Paz’s name as Jose Martin Paz Flores.

The complaint from the DOL 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 its files any information regarding the adverse action against the employee in this case, and notify employees of their whistleblower rights under the OSH Act.

Unfortunately for this employer, it was just sly enough to have its plan backfire.  It is a good lesson on why delicate employment situations should always involve experienced counsel.

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