Untied States: DHS, DOL Agree to Avoid Worksite Investigation Conflicts
The Department of Homeland Security and the Department of Labor have formally agreed to collaborate in their worksite enforcement activities and to avoid undertaking conflicting civil investigations against a single employer.
In a move to coordinate their enforcement activities, the Department of Labor (DOL) and the Department of Homeland Security (DHS) have agreed to refrain from conducting simultaneous and conflicting civil investigations of a single employer and will generally share information on enforcement initiatives, according to a memorandum of understanding (MOU) that was recently concluded between the two agencies.
Specifically, DHS’s Immigration and Customs Enforcement (ICE) bureau – which is charged with Form I-9 investigations, among other responsibilities – will not initiate civil enforcement actions if there is an existing DOL investigation of an ongoing labor dispute at a worksite. However, a separate ICE investigation can go forward during a DOL investigation if the case involves national security, protection of critical infrastructure, crimes other than those involving illegal employment, or when an ICE investigation is initiated at the request of the Department of Labor or at the direction of the Secretary of Homeland Security.
According to the MOU, DOL and DHS will also engage in more formalized information-sharing, including referring enforcement tips to one another, and ICE agrees to consider granting parole to DOL witnesses who lack lawful immigration status. The two departments will also create a joint Worksite Enforcement Coordination Committee to monitor the agencies’ ongoing collaboration on enforcement and compliance with the MOU.
The terms of the MOU apply to ICE, DOL’s Wage and Hour Division (which is charged with enforcement of H-1B labor condition application rules, among other areas), the Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration.
What the MOU Means for Employers
Though the MOU directly affects only the two federal agencies that entered into the agreement, it provides some modest assurance that employers may not be subject to simultaneous DOL and ICE civil investigations into possible worksite violations. In a larger sense, though, the MOU serves as a reminder of the difficult task that faces employers in balancing immigration compliance and labor relations. Employers – especially those with a unionized workforce or those in the midst of a labor dispute – should consult with their legal counsel when dealing with any immigration compliance issue.
Source: Fragomen