The United States Department of Justice announced on July 8, 2013 that its Civil Rights Division’s Office of Special Counsel for Immigration – Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board that will allow both agencies to share information, to refer matters to each other concerning potential violations of the laws governed by the respective agencies, and to coordinate multi-agency investigations.

The OSC is responsible for enforcing the prohibition against unfair immigration related employment practices and the anti-discrimination provisions of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing, and recruitment and referral for fees, as well as document abuse and related unlawful practices in the I-9 employment authorization verification process. The NLRB is an independent federal agency that is responsible for enforcement of the National Labor Relations Act which protects the rights of most private sector employees to unionize, collectively bargain, and engage in other “protected concerted activity.”

The MOU was designed to encourage employees to seek redress for violations under the appropriate laws and through the appropriate federal agencies although such a claim may have been initially brought to the attention of the wrong agency. “Employers 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” said Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division. 

The MOU will allow the OSC to make referrals to the NLRB with the express authorization of the complaining party when the matter investigated by the OSC suggests a violation of the NLRA. Likewise, the OSC can expect to receive referrals from the NLRB when the matter before it suggests a possible unfair immigration related employment practice such as demanding specific documentation for the employment authorization verification process for completion of the I-9 form or discrimination based on citizenship status or national origin. The MOU further provides for cross training between the two Federal entities as well as technical assistance for identifying and making appropriate referrals. The OSC maintains more than 50 similar agreements with other federal, state, and local agencies including the Equal Employment Opportunity Commission.

The NLRB, often inaccurately thought of as interested only in collective bargaining and union organizing issues, has in recent years aggressively pursued violations by non-union employers.  Among other things, the NLRB has brought to light violations in common workplace policies at numerous unwary employers.  With the new agreement, it is likely that the Board will now look to the OSC to help ferret out additional hidden violations – another good reason for employers to have their policies reviewed by counsel.