Expanded Joint Policy Provides New Protections for Immigrant Workers Who Allege Employment Discrimination

Expanded Joint Policy Provides New Protections for Immigrant Workers Who Allege Employment Discrimination or Unfair Labor Practices

By Jessie Hahn, NILC labor & employment policy attorney
SEPTEMBER 1, 2016

When workers decide to come forward to make complaints about labor violations in their workplaces, they face many risks—being isolated from coworkers or retaliated against by their employers, losing their jobs, or even being blacklisted so other employers won’t hire them. Yet our system of labor protections depends on the courage of everyday people to speak up in the face of workplace violations, because the government agencies responsible for enforcing labor laws are severely understaffed and many violations would go undetected if workers didn’t come forward to file complaints.

For this reason, it’s very important that the U.S. Dept. of Homeland Security (DHS) recently agreed to avoid initiating worksite immigration enforcement actions, such as I-9 (employment eligibility verification form) audits, at worksites where investigations into worker allegations of discrimination or unfair labor practices are ongoing.

DHS and the U.S. Dept.of Labor (DOL) already had an existing policy (a memorandum of understanding, or “MOU”) regarding worksite immigration enforcement, under which DHS agreed not to initiate worksite enforcement activities when a DOL investigation was pending at a worksite. Under the newly expanded policy, which took effect May 6, 2016, DHS has now extended that agreement to cover worksites that are the subject of investigations by the Equal Employment Opportunity Commission (EEOC) or the National Labor Relations Board (NLRB).

In order to trigger these protections against worksite immigration enforcement at sites where workers are asserting their rights, workers should file a complaint with the appropriate labor agency and make sure that the complaint is accepted and logged in to the agency’s database. In cases where the employer has threated to retaliate, or if it appears that a DHS worksite enforcement action is imminent, the worker should immediately inform the appropriate labor agency of the threat.

Workers and advocates should also consider meeting proactively with local offices of the federal labor agencies as well as with DHS to discuss implementation of the expanded MOU. These meetings can be important spaces to share information, check that local DHS officials are actually aware of the MOU and trained in its contents, and build relationships with the local DHS, DOL, EEOC, and NLRB officials responsible for implementing the MOU.

More information about this newly expanded policy and recommendations for how to use it in your advocacy and organizing are available in “Immigration and Labor Enforcement in the Workplace: The Revised Labor Agency–DHS Memorandum of Understanding,” a fact sheet coauthored and recently updated by NILC and the National Employment Law Project (NELP).