On July 8, 2013, the U.S. Department of Justice (DOJ) announced that the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) had entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board (NLRB). The stated purpose of the MOU is “to foster cooperation and minimize duplication of effort” between the agencies. The agreement allows OSC and the NLRB to collaborate in enforcing the Immigration and Nationality Act (INA) and the National Labor Relations Act (NLRA), including sharing information, referring matters to each other, and coordinating investigative and enforcement actions.
The agreement authorizes the agencies to cross-refer complaining employees to one another should the alleged unlawful conduct appear to overlap and fall within both agencies’ respective jurisdictions. Specifically, in terms of the MOU, the NLRB is allowed to refer a matter to OSC when it becomes apparent that there is a possible violation of the anti-discrimination provision of the INA, which OSC enforces, such as citizenship status and national origin discrimination in hiring, termination, and recruitment, or discriminatory practices in the employment eligibility verification (I-9 and E-Verify) process. Likewise, the agreement enables OSC to make referrals to the NLRB when a matter suggests a possible violation of the NLRA, such as the infringement on the right to form, join, decertify, or assist a labor organization, to bargain collectively through representatives of an employee’s own choosing, or to refrain from any of these activities. The MOU also requires the NLRB and OSC to provide cross-training and technical assistance to staff members to aid in accurately identifying cases and issues that necessitate referral. In addition, where appropriate, the agreement permits the agencies to coordinate parallel investigations, including sharing information, participating jointly in an investigation, and directly communicating on matters related to a case, in order to minimize duplicative efforts.
Implications of the MOU for employers that hire foreign workers
Employers are less likely to avoid liability
Employers should be aware that the formalized agreement between the NLRB and OSC essentially enables the two governmental agencies to collaborate with each other to assist employees in enforcing labor and immigration-related anti-discrimination provisions. In announcing this collaboration, Gregory Friel, Deputy Assistant Attorney General for the DOJ’s Civil Rights Division, commented that “(e)mployers cannot avoid liability under the law just because an employee has turned to the wrong agency or is unaware of additional protections available under a different law.” Thus, employees who bring complaints to one agency that should more properly have been filed with the other are less likely to get lost in the system.
Data sharing between government agencies may lead to collateral inquiries
OSC plays a central role in prosecuting alleged violations of the INA’s anti-discrimination provisions. Partnerships like this MOU between government agencies are not uncommon. This latest collaboration between the NLRB and OSC, permitting referrals and data sharing, will allow the NLRB (an agency not generally associated with investigating immigration noncompliance issues or immigration-related discrimination cases) to more easily refer such cases to the appropriate agency (in this case, OSC) when issues such as I-9 and E-Verify violations are identified in the course of investigating traditional labor relations complaints. Therefore, these types of inter-agency agreements foster a culture of information sharing and cross-fertilization, making the issue of immigration compliance more pervasive among several interacting government agencies that are increasingly attuned to the concept, able to identify immigration-related deficiencies or violations, and refer cases appropriately.
Employers are reminded that immigration law violations will not be tolerated
The MOU is also in keeping with the government’s increased enforcement actions against employers that violate labor and immigration laws. This upward trend in government enforcement efforts and investigations includes not only the DOJ’s continued crackdown on employers that do not lawfully engage in the employment eligibility verification process or that discriminate on the basis of citizenship status and national origin in employment decisions, but also the persistent targeting of noncompliant employers by means of worksite enforcement actions on the part of sister agencies, including the U.S. Department of Labor (DOL) and U.S. Immigration and Customs Enforcement (ICE). Formalized accords between government agencies enabling them to cooperate in investigating complaints should serve as a further prod to employers to take steps to ensure that they are in compliance with the law.
Cooperation between federal agencies is supposed to cut through red tape and promote employer compliance
The agreement appears to be in line with President Obama’s vision for greater government efficiency. On the same day that the MOU was announced, the President called on Congress to authorize the reorganization of government agencies so that they can more closely cooperate in order to eliminate “bureaucratic hoop-jumping,” consolidate their services for greater efficiency, and “better deliver on the functions the American people are looking for.” These sentiments were echoed by Deputy Assistant Attorney General Friel, who remarked that “(e)mployees deserve to benefit from the efficiency of government cooperation, and employers will continue to benefit from agency guidance on how to comply with the anti-discrimination provision and the National Labor Relations Act.” Redesigned government agencies with merged and rationalized functions are an imposing factor for employers to consider when evaluating their compliance programs and their exposure to risk.
Employers need to be proactive
The collaboration between government agencies will likely continue, thus facilitating data sharing and cross-investigations. While the precise impact of the MOU on employers is as yet unclear, employers are, nonetheless, reminded to review their immigration compliance policies and practices. When reviewing or evaluating compliance programs, it is essential that companies examine their hiring policies and practices and take steps to ensure their workforce is legal by making good faith efforts to verify employment eligibility. Businesses engaging in unlawful practices should take note of the significant penalties and ensure that they are in compliance with the law.
A complaint lodged by an employee with one government agency may very well expand into an investigation into immigration violations by another sister agency. Proactively discussing compliance with experienced legal counsel can equip employers in handling parallel inquiries from cooperating partner agencies, helping to reduce potential fines and the chance of other sanctions being imposed should your company be the subject of a government audit or investigation.