Protecting Immigrant Workers from Retaliation: Federal Agencies Release Action Plan

As part of the 2014 executive actions on immigration, President Obama announced the formation of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.  The Interagency Working Group is made up of the following federal agencies: the Department of Homeland Security (DHS), the U.S. Department of Labor (DOL), the Department of Justice (DOJ), the Equal Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB), and aims to ensure that immigrant workers can effectively assert their workplace rights without fear of retaliation, and to prevent the use of immigration enforcement as a means to undermine worker-protection laws.   In order to carry out these goals, the Interagency Working Group enacted a six-month action plan

Now that the initial six-month period is over, the Interagency Working Group released an action plan update.  The newly-updated plan includes:

  • A new pilot program that identifies and prevents U.S. Immigration and Customs Enforcement (I.C.E.) from engaging in workplace immigration enforcement activities—including conducting I-9 audits—at worksites where pending investigations, enforcement activities or labor disputes are ongoing with other agencies. 
    • DHS and DOL have coordinated their respective worksite enforcement efforts under the DHS-DOL Memorandum of Understanding (MOU) since 2011.  Under this arrangement, ICE agreed to refrain from immigration enforcement at workplaces where DOL is investigating or engaged in enforcement. 
    • This new pilot project would extend the protections of the MOU to include the EEOC and the NLRB, which would cover, for example, pending unfair labor practice charges or representation petitions before the NLRB.  
  • A new fact sheet entitled Retaliation Based on Exercise of Workplace Rights is Unlawful.  The fact sheet summarizes various anti-retaliation provisions in federal labor and employment laws.  It also provides information about potential remedies available to workers who lack work authorization. 
  • A new joint guidance from ICE and DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) that provides employers information on how to conduct internal audits of their I-9 forms.  Employers are reminded that they are prohibited from conducting discriminatory or retaliatory internal audits.  It also reminds employers that they are not required to terminate employees who reveal that they were previously unauthorized to work, if the employees are presently authorized to work. 

While this action plan is a step forward in protecting the rights of all workers, there is still much that can be done to prevent and remedy unlawful retaliation by employers against workers who exercise their workplace rights.  Workers and organizers should continue to be vigilant in identifying unlawful retaliation and ensuring all workers’ rights are protected.  

With questions regarding these executive actions, please contact your labor or immigration law counsel. 

By Stephanie Delgado | January 8, 2016

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