Preventing Immigration Enforcement During Pending Labor Disputes: NLRB & EEOC added to existing DOL and DHS MOU

Charges and/or complaints pending before the NLRB and the EEOC are now considered “on going labor disputes” that can prevent immigration authorities from engaging in workplace immigration enforcement actions—including conducting I-9 audits or workplace raids—according to a recently released amended federal agency guidance.

This new guidance is the result of President Obama’s 2014 executive actions on immigration.  Part of those efforts included the creation of an Interagency Working Group aimed at ensuring that immigrant workers can assert workplace rights without fear of retaliation and to prevent the use of immigration enforcement as a tactic to undermine workplace laws.

The new guidance comes in the form of an Addendum to the 2011 DOL and DHS Revised Memorandum of Understanding (“MOU”) Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites.  It expands the original protections of the Revised 2011 MOU between DOL and DHS to now include the NLRB and the EEOC.

Labor disputes covered by the Addendum to the Revised DHS-DOL MOU include:

  • Complaints or charges pending with the DOL concerning:
    • violations of minimum wage, contract wage and overtime pay;
    • the right to receive family medical leave and employee benefits;
    • the right to have a safe workplace and receive compensation for work-related injuries;
    • the right to be free from unlawful discrimination; and
    • the right to be free from retaliation.
  • Complaints or charges pending with the NLRB, including pending unfair labor practice charges and petitions for election, concerning:
    • the right to form, join or assist a labor organization, to participate in collective bargaining or negotiation, and to engage in protected concerted activities for mutual aid and protection; and
    • the right to be free from retaliation. 
  • Complaints or claims pending with the EEOC concerning violations of discrimination laws, including:
    • Title VII (race, color, sex, national origin, and religion);
    • Equal Pay Act (sex);
    • ADA (disability);
    • Age Discrimination in Employment Act (age 40 and older);
    • Genetic Information Nondiscrimination Act (acquisition or use of genetic information); and
    • unlawful retaliation.

Under the Addendum, ICE agrees to provide notice to the labor agencies (NLRB, EEOC, and DOL) when it has decided to engage in a worksite enforcement action.  If there is a pending labor dispute, ICE should stand down (unless doing so would otherwise compromise ICE’s investigation or would violate federal law).  ICE also agrees to consider requests from the NLRB, EEOC, and DOL that the immigration agency grant a temporary parole or deferred action to any witness needed for the agency investigation of the labor dispute and during any related proceeding where such witness is in the country unlawfully.

The addendum and the collaboration of the federal labor, employment and immigration agencies is a step forward in protecting the rights of all workers.  Workers and organizers should continue to be vigilant in identifying unlawful retaliation and ensure all workers’ rights are protected. 

By Stephanie Delgado | June 7, 2016

Legal Developments