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Immigration Retaliation Gets Employer in Trouble with OCAHO

Although our past articles highlighted many cases heard by the Office of the Chief Administrative Hearing Officer (OCAHO) that resulted in the reduction of employer I-9 penalty amounts, today’s article depicts a case where an employer suffers a uniquely different fate.

A recent case evaluating a Massachusetts hospital’s conduct provides a glimpse of the additional costs to employers that immigration-related retaliatory conduct could have.  The opinion contains a long procedural and factual history with many twists and turns.  Here’s my condensed recap of what happened and why employers will want to pay special attention.  [This one is a doozy!]


The case, decided by OCAHO this month, involved Hospital based in Massachusetts.  The complaining party was a doctor, a U.S. citizen, the hospital had previously engaged as an independent contractor beginning in December 2009.

In June 2010, the doctor filed a complaint (the first) with the Office of Special Counsel (OSC) charging the Hospital for immigration-related unfair employment practices.

In July 2010, the Hospital terminated the doctor’s engagement contract.

The OSC investigated the complaint with the Hospital’s cooperation and determined that no immigration-related discrimination had been committed by the Hospital.  The OSC informed the doctor he could file a complaint with the OCAHO if he so chose, but within a 90-day timeframe.  The doctor declined and filed a lawsuit instead in state court against the Hospital in December 2010.

In August 2011, the Hospital responded to the doctor’s state court claims and also filed a counterclaim.

In November 2011, the doctor then filed a second charge with the OSC, claiming the Hospital had retaliated against him for his first OSC complaint by filing a counterclaim attempting to recoup legal fees and costs from having to defend the first OSC investigation.

Meanwhile, the Massachusetts Superior Court ruled in December 2011 that the Hospital’s counterclaim was not valid.

In March 2012, regarding the doctor’s second OSC complaint, the OSC advised the doctor he could file a hearing with OCAHO.  The doctor complied and filed this case in June 2012.


This case raised (and answered), for the first time, interesting questions about immigration-related discrimination law on retaliation claims.

  • Could OCAHO legally review the retaliation claim?

One of the more colorful questions of this case was whether the OCAHO court had jurisdiction to review the retaliation claim (the second OSC complaint).

The Hospital reasoned that the counterclaim it filed, which had been pending in the state’s civil court, was not within the jurisdiction of OCAHO because of the state laws that were raised in that case.  OCAHO didn’t dispute those issues. Rather, OCAHO relied on 8 U.S.C. § 1324b(a)(5), which is the legal the basis for the doctor’s second OSC complaint, that allows OCAHO to fully review the doctor’s claim of retaliation by the Hospital.

  • Is it possible for independent contractors, who are not employees, to suffer retaliation? 

The Hospital claimed that it was impossible for it to have retaliated against the doctor because the doctor was not an employee and as such, could not have suffered any “adverse action” of employment.

According to the applicable law though, employers may not retaliate against “any individual” for exercising his right under 8 U.S.C. § 1324b(a).  Unlike other restrictive federal employment laws, individuals who file a claim with the OSC under 8 U.S.C. § 1324b(a) need not be an employee or job applicant of a company alleged to have violated the law.

In short, the answer is yes, independent contractors can suffer retaliation, so long as other statutory requirements were met.

  • Does filing a claim in civil court constitute immigration-related retaliatory conduct?

The retaliatory conduct in question was the Hospital’s filing of a counter claim in civil court, demanding the doctor pay the Hospital for its legal costs incurred as a result of defending the first OSC investigation.

According to OCAHO, the doctor had indeed raised a facially viable claim of retaliation by meeting all the basic requirements.  He was a protected class member.  He “engaged in conduct protected by statute” by filing an OSC complaint (first one).  As a result, the Hospital took action against him by filing a counter claim in civil court (i.e.: the retaliatory conduct) to which the doctor had to pay at least $13,996 to defend against the counterclaim.  But for his filing the first OSC complaint, the Hospital would not have filed the counterclaim in civil court to recoup legal fees and costs.


In addition to barring the Hospital from its counterclaim relief, the Hospital was required to post a notice “advising employees about their rights under the statute” (see page 26 of the opinion) and remove negative information from the doctor’s personnel file.

Under the law, prevailing parties in these hearings are allowed to recover attorney’s fees.  In this case, since the doctor represented himself in the hearings as a pro se litigant, OCAHO did not permit him to recoup legal fees stemming from his civil court case, but did allow him to recoup a portion of those fees that were associated with preparing for the OCAHO hearing.


An important issue highlighted in this case was OCAHO’s public policy statement:

Enforcement of § 1324b depends upon the willingness of potential witnesses to come forward, file charges, and participate in OSC’s investigatory process. [ ] If witnesses and charging parties are intimidated or threatened by the prospect of personal lawsuits, the integrity and effectiveness of the agency’s investigative process is undermined. …  [C]ivil rights laws do not exist solely for the benefit of aggrieved individuals, but also for the public good and the national interest.

The fact the OCAHO court awarded a pro se (self-represented) partial recovery of his legal costs is notable.

What’s remarkable is the financial cost this string of events ended up costing the employer in this case.  While the first OSC investigation resulted in no formal actions against the employer, the employer incurred considerable costs in defending the case.

What protections does an employer have against a disgruntled employee, or individual who files a complaint with OSC later deemed without merit?  What’s inferred from the results of this case is that it may well just be another cost to employers for doing business. This is one costly lesson learned!