New DHS and DOL Memorandum of Understanding Confirms Information Sharing Between Departments

Contributed by Sara Zorich

On March 31, 2011, the US Department of Labor (DOL) and the Department of Homeland Security (DHS) entered into a Memorandum of Understanding (MOU) concerning enforcement activities at worksites. The purpose of the MOU is to clarify the ways in which the departments will work together to advance their directives of enforcement and to avoid conflict. The DOL is tasked with enforcement and assurance of proper wages and working conditions while the DHS enforces immigration laws including ensuring workers are authorized to work in the United States. Through the MOU, ICE has agreed to refrain from engaging in civil worksite enforcement at a worksite with an existing DOL investigation of a labor dispute, however, there are exceptions where both agencies can investigate at the same time if it is determined necessary by the Director of ICE, Secretary of Homeland Security or by an officer of the DOL. The purpose of this MOU is to reduce duplication of efforts between the departments. However, the MOU specifically states that ICE and DOL agree to create a means in which to exchange information from their respective investigations.

Though we will need to see how this is implemented, MOU appears to say that in most circumstances in which an employer is subject to a DOL investigation regarding minimum wage, FMLA, work related injuries, discrimination and/or retaliation, that the employer will not also be subject to an ICE civil audit at the same time. However, this MOU makes it clear that the DOL and ICE will be sharing information from their respective investigations and does not restrict ICE from investigating after a DOL investigation is complete. Therefore, if an employer is subject to an audit by one of the departments the information gathered during that audit may be shared with other government enforcement units.

The government’s actions make it clear that enforcement is still a key strategy of the administration and there are no signs of slowing. This is the time for employers to review their wage and hour policies and practices as well as their immigration polices and practices, including their I-9’s, to ensure compliance before ICE or DOL come knocking.