Effective July 31, 2018, the U.S. Department of Labor (DOL) and U.S. Department of Justice (DOJ) have entered into a three-year Memorandum of Understanding (MOU) to cooperate and share records in order to better coordinate and increase enforcement of U.S. worker protections under U.S. immigration law.
The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Department of Justice enforces Immigration & Nationality Act (INA) provisions that prohibit citizenship and national origin discrimination in the hiring process. With rare exception, employers may not discriminate based on citizenship or national origin, and may not request specific or more documentation in verifying employment eligibility than is strictly required by regulation.
While these provisions are commonly understood to protect “foreign sounding” workers from discrimination based on accent, culture, or other differences that may be associated with citizenship or national origin, the DOJ has made clear that the IER will equally, or now perhaps more rigorously, pursue investigation of cases wherein it is alleged that employers have discriminated against a U.S. worker in preference of a foreign national who may be on an H-1B or other temporary work visa or who may be undergoing the PERM labor certification step of the permanent residency process.
In order to more rigorously pursue these types of investigations, the DOJ has entered into this new MOU with the DOL. By its terms the IER will have access to DOL records pertaining to Labor Condition Applications and PERM Labor Certifications, and IER will notify the DOL of information that may indicate a violation of DOL regulations.
Based on this information sharing agreement, employers should expect that the DOL will notify the IER, and vice versa, of complaints referencing alleged discrimination against U.S. workers. Additionally, based on the terms of the MOU, employers should anticipate the following:
- DOL may notify IER to initiate investigation when the DOL has found that a U.S. worker was improperly disqualified during the PERM labor certification recruitment process.
- DOL may encourage U.S. workers improperly disqualified by employers in the PERM labor certification process to file complaints with IER.
- DOL will allow IER access to PERM labor certification records and Labor Condition Application records to encourage and facilitate IER investigations.
- DOL will encourage State Workforce Agencies to file complaints with IER.
- IER will alert DOL whenever IER encounters information that suggests an employer may have violated PERM or LCA regulations so that DOL can take whatever further action DOL deems appropriate, including initiation of a DOL investigation.
IER and DOL will designate personnel to serve as points of contact to better facilitate information sharing and coordination of investigative efforts. Employers should expect that greater information sharing will enable these agencies to more readily identify targets for investigation and more fully develop their cases for prosecution. Further, employers may expect that an investigation by either IER or DOL may likely lead to an investigation by the other agency.
Employers should take action to ensure that their compliance programs are robust and complete and should consult their Foster attorney for assistance in evaluating program compliance and closing any potential gaps. Additionally, employers should continue to consult with their Foster attorneys on an ongoing basis in connection with Form I-9 compliance and the sponsorship of foreign nationals for temporary or permanent employment opportunities.