Security Debrief

I have to admit that, when I first joined government service nearly two decades ago, straight out of the ideological setting of law school, I marveled at the practice of two governmental agencies having to enter into formal agreements to do their respective jobs, avoid interfering with each other’s duties, and cooperate in sharing intelligence. Over time, however, I came to realize that government, like other earthly institutions, are run by people who possess the same human nature as private sector employees. Given the inherent unpredictability of human nature, these agreements preserve institutional memories, keep agency commitments, and (very important now that I am outside government) provide transparency to the public.

We saw yet another one of such agreements in March. On March 31, 2011, the Department of Labor (DOL) and Department of Homeland Security (DHS) released the terms of a Memorandum of Understanding (MOU) regarding worksite enforcement of immigration laws in the event of a DOL investigation of labor dispute. The terms of the MOU applies to U.S. Immigration and Customs Enforcement (ICE) at DHS and the Wage and Hour Division (WHD), Office of Federal Contract Compliance Programs (OFFCP), and the Occupational Safety and Health Administration (OSHA) at DOL.

Under the MOU, ICE agrees to refrain from conducting “civil worksite enforcement” if there is an “existing DOL investigation.” Moreover, ICE agrees “to be alert to and thwart attempts by parties to manipulate its worksite enforcement activities” for the purpose of achieving a certain outcome in the labor dispute. The only exceptions are cases involving national security, critical infrastructure protection, crimes not involving illegal employment, or when investigation is initiated at the request of the DOL or under the direction of the Secretary of Homeland Security.

The two departments will create a joint Worksite Enforcement Coordination Committee for implement review and dispute resolution among the federal agencies.

So who cares, one might ask? What is the significance of this MOU? Isn’t it, after all, just between two departments of the federal government? The answer is that we care because this is yet another reminder of the difficult task employers have to balance the interest of immigration compliance and managing labor relations. The language and tone of the MOU suggest an inherent mistrust of employers, that employers would use ICE enforcement as a ploy to undermine DOL authority in protecting labor interests, or use ICE as leverage in an ongoing labor dispute.

The good news is that employers may only have to deal with one investigation at a time, if in fact ICE backs off enforcement while DOL action is ongoing.

The Obama Administration always has been open and honest about its emphasis on labor protection. Honest and law abiding employers would be remiss to not get the hint. They must exercise extraordinary caution, and keep extraordinarily good records, to demonstrate adherence to labor and immigration laws. Likewise, employers also must be cautious at the eligibility verification (I-9) stage. Overzealous verification can cause the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to impose penalties as well.

If we are to take away any message from this latest MOU, it is that employers, especially those with a unionized workforce or are in the midst of labor disputes, should exercise abundant caution and seek legal counsel before dealing with any immigration compliance issues.