While there have always been fluctuations in government agency enforcement activity, a phenomenon that seems to persistently increase, at least recently, is information sharing and cooperation between government agencies. Government agencies increase enforcement activity and attempt to identify patterns through information sharing and agency cooperation. For businesses more government interaction of any kind means more time and money spent. A recent announcement signals more activity in the area of union activity and immigration law. Businesses need to be aware of this development as they interface with government agencies.
In July 2013, the National Labor Relations Board (NLRB) and the Department of Justice - Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) entered into a Memorandum of Understanding (MOU), formalizing a collaborative relationship between the two agencies. The NLRB enforces the National Labor Relations Act (NLRA), which provides most private-sector employees with basic rights related to organizing and participating in trade unions. The OSC is tasked with enforcing the Immigration and Nationality Act’s anti-discrimination provision, which prohibits citizenship and national origin discrimination in the workplace.
As Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division, explains, the purpose of the MOU is to ensure that employers “do not avoid liability under the law just because an employee has turned to the wrong agency or is unaware of additional protections available under a different law. Employees deserve to benefit from the efficiency of government cooperation, and employers will continue to benefit from agency guidance on how to comply with the [Immigration and Nationality Act’s] anti-discrimination provision and the National Labor Relations Act.”
Accordingly, the MOU allows the NLRB and the OSC to share information, refer matters to each other and coordinate investigations as appropriate. Specifically, the MOU allows the NLRB to make referrals to the OSC when it appears that a matter before the NLRB involves elements of employment discrimination, such as in recruitment and retention practices or in I-9 or E-Verify processes. In turn, where it appears that an employer may have infringed on employees’ rights to form, join, decertify or assist a labor union, the OSC may refer the matter before it to the NLRB. The OSC has partnership agreements with more than 50 federal, state and local agencies, including U.S. Citizenship and Immigration Services and the Equal Employment Opportunity Commission. The NLRB will now benefit from these partnership agreements. To ensure that staff within each agency can identify and initiate appropriate referrals, the MOU provides for cross training and technical assistance.
The take-away for businesses is that, more than ever, communications with NLRB and OSC will be shared. Businesses should consult with counsel as appropriate and consider the implications of their actions and communications as they may be viewed by other government agencies, not just the agency they are currently dealing with. In particular, if a business is involved in any matter involving immigration compliance, the business should consider NLRA implications before communicating with OSC. At the same time, businesses interfacing with the NLRB should consider any immigration compliance and discrimination implications before communicating with a union or the NLRB.