Department of Labor and Homeland Security Announce Enforcement Agreement Between Agencies

Recognizing there are times when the interests of the Department of Labor (DOL) and the Department of Homeland Security (DHS) overlap, the two agencies recently issued a revised Memorandum of Understanding (MOU). The MOU outlines how three DOL agencies—the Wage and Hour Division, Office of Federal Contract Compliance Programs, and Occupational Safety and Health Administration—are expected to exchange information and interact with DHS agencies, primarily Immigration and Customs Enforcement (ICE). The full text of the MOU can be found here.

The DOL agencies are primarily responsible for labor law enforcement, and ICE is responsible for immigration law enforcement. These agencies have worked together in the past, however, it was unclear if they should coordinate efforts or have overlapping investigations. For example, if an OFCCP compliance review is active at a location, and ICE would receive a tip (or a referral from the OFCCP) about potential I-9 violations, how would the two investigations coordinate?

This MOU outlines that while an existing DOL investigation is in progress at a worksite, ICE will refrain from conducting civil worksite enforcement activities. These activities include: inspecting I-9s, levying fines, and making civil arrests for violations of immigration laws. The MOU is very clear that ICE is able to enforce criminal penalties at any time, regardless of DOL investigation status.

ICE may engage in these civil enforcement activities during a labor investigation in certain circumstances that are directed by the Secretary of Homeland Security, Secretary of Labor, Solicitor of Labor, or their designates; activity related to national security; for the protection of critical infrastructure worksites such a power plant or seaport; or in the event of a federal crime other than unauthorized employment.

The MOU also specifies the process for special handling of witnesses, sharing information gathered during an investigation, issuing press releases, implementation of the MOU, and maintaining confidentiality.

Employers should review their procedures for immigration compliance and equal employment opportunity, and consult with legal counsel or compliance experts to ensure processes and documents meet all regulatory requirements.

For more information, please contact Berkshire Associates at 800.882.8904 or email bai@berkshireassociates.com.