Revised Inter-agency Agreement Clarifies Worksite Enforcement Directives

Yesterday, the US Department of Labor (DOL) and the Department of Homeland Security (DHS) signed a revised Memorandum of Understanding (MOU) which clarifies the ways in which the two agencies will coordinate their respective civil worksite enforcement initiatives.

Historically, both agencies have worked together pursuant to a 1998 MOU which promoted the shared interests of having a legal workforce that is protected under the full range of fair employment standards.  Despite this long-standing agreement, it has never been entirely clear to what extent the two agencies would conduct coordinated or joint enforcement activities (the dreaded one-two punch).

Yesterday’s MOU revision clarifies that while both agencies are encouraged to share pertinent worksite information (which would be relevant to the other), employers should generally not expect both DOL and ICE worksite investigations at the same time. Nevertheless, employers should take note that there are limited circumstances (see below) when dual investigations are not only permitted, but also very likely. Plus, when it comes to worksite enforcement, policy and practice have been known to diverge on occasion.

The Players The principal and responsible parties to this revised MOU include the U.S. Immigration and Customs Enforcement (ICE) and a trio of agencies from the DOL, including the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA). As readers of this blog know full well, the worksite enforcement activities of ICE include the authority to inspect Forms I-9, to investigate, to search, to fine, and to make civil arrests for violations of the immigration laws relating to the employment of foreign nationals without work authorization. The worksite enforcement activities of DOL include the authority of WHD, OFCCP, and OSHA to enforce the requirements of the labor laws under their jurisdiction, including the relevant provisions of the Fair Labor Standards Act, Family and Medical Leave Act, the Davis Bacon and Related Acts, and the Occupational Safety and Health Act among others.

The General Rule: no concurrent investigations In order to avoid potential conflict and duplication of effort, ICE is now formally agreeing to refrain from engaging in civil worksite enforcement activities at a worksite that is the subject of an existing DOL labor dispute investigation (wage & hour, work-related injuries, discrimination, etc.) during the pendency of the DOL investigation and any related proceeding.  ICE will, however, continue its existing practice of assessing whether tips and leads it receives concerning worksite enforcement involve a worksite with a pending labor dispute. As part of this research, ICE will also assess whether such tips and leads are motivated by an improper desire to manipulate a pending labor dispute, retaliate against employees for exercising labor rights, or otherwise frustrate the enforcement of labor laws.

Exceptions to the Rule As mentioned above, there are circumstances under which ICE can (and probably will) engage in worksite enforcement activities at an employer that is the subject of a pending labor dispute. These include instances relating to national security, the protection of critical infrastructure (e.g., ports, power plants, or defense facilities), or a federal crime other than a violation relating to unauthorized employment. In addition, ICE can also receive the go-ahead from the Secretary of Homeland Security, the Secretary of Labor, the Solicitor of Labor, or another Department of Labor official designated by the Secretary of Labor.

Sharing is Caring This revised MOU also makes it very clear that the two agencies are encouraged to share information related to their respective worksite investigations. Specifically, ICE can allow DOL to interview any person ICE detains for removal through a worksite enforcement activity; grant a temporary law enforcement parole or deferred action to any witness needed for a DOL investigation of a labor dispute; and refer information concerning a potential labor violation to DOL. In return, DOL will provide ICE with timely and accurate information to allow for identification of overlapping enforcement activity. Together, ICE and DOL also expressed the intent to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status.

Bottom Line Worksite enforcement remains an important strategy under the Obama Administration which serves the dual purpose of reducing unauthorized employment and protecting US worker’s rights. While the DOL and DHS have separate enforcement authorities, there is plenty of overlap which can lead to multiple investigations and big headaches for employers. Now more than ever, employers should strongly consider a proactive review of current employment practices with experienced legal counsel and look for ways to improve efficiency and eliminate mistakes with intelligent compliance software.