This past September, before the U.S. Department of Labor and the Immigration and Naturalization Service signed their new memorandum of understanding (MOU) concerning workplace inspections (see "INS and DOL Sign New Memorandum of Understanding on Workplace Inspections"), the Yale Law School Workers’ Rights Project, the ACLU Immigrants’ Rights Project, and nearly twenty other immigrants’ and workers’ rights organizations filed a petition challenging the cooperation agreement between the two agencies that was in effect at that time.  The groups filed the petition under the labor side agreement of the North American Free Trade Agreement (NAFTA), whose members include the United States, Canada, and Mexico.

Under the previous MOU, which had been in effect since 1992, the DOL was required to inspect I-9 employment eligibility verification forms whenever it conducted a labor standards enforcement investigation at a work site.  When the DOL uncovered any evidence that workers unauthorized to be employed in the U.S. were working for the company being inspected, the agency was required to refer the matter to the INS.  Therefore, under this arrangement any worker who filed a wage complaint with the DOL risked triggering a referral of his or her case to the INS.  This had a chilling effect on workers’ willingness to file wage complaints with the DOL, since undocumented workers who filed complaints exposed themselves to the possibility of being deported.

Under federal law, workers in the United States are entitled to mandatory minimum and overtime protections, regardless of their immigration status.  The NAFTA labor side agreement requires that the United States, Canada, and Mexico enforce their own labor and employment laws.  But the Yale law students and the other petitioners charged that "[b]ecause the MOU results in the systematic underenforcement of U.S. minimum wage and maximum hour laws, it is incompatible both with U.S. labor law and with the NAFTA side agreement on labor."  The petitioners asked the governments of Mexico and Canada to investigate this problem and called on the two U.S. agencies to rescind the MOU.

Meanwhile, the DOL and the INS signed the new MOU, according to which DOL inspectors no longer will conduct I-9 inspections in investigations that originate from worker complaints.  However, the DOL still will conduct I-9 inspections and make referrals to the INS in those investigations that are not "complaint-driven."