Employers should be aware that the Department of Justice (DOJ) and the National Labor Relations Board (NLRB) will now be acting together to enforce both the Immigration and Nationality Act (INA) and the National Labor Relations Act (NLRA), according to the DOJ's announcement. Per the Memorandum of Understanding (MOU) entered into between the NLRB and the DOJ'sCivil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), both agencies will now be able to share information, refer matters to each other and coordinate investigative and enforcement actions.
Under the MOU, the OSC will be allowed to refer matters to the NLRB that involve possible violations of the NLRA, such as the infringement on the right to engage in protected activity and on right to form, join, decertify or assist a labor organization. The NLRB will also be able to refer matters (with the express consent of the NLRB charging party) to the OSC when there appears to be a possible violation of the ant-discrimination provision of the INA, which prohibits citizenship status and national origin discrimination in hiring, termination and recruitment as well as discriminatory Form I-9 and E-Verify practices. NLRB and the OSC staff will be provided cross-training and technical assistance to properly identify matters to be referred.
The MOU between these two agencies is indicative of the government's increased efforts to take enforcement action against noncompliant employers. For instance, the NLRB has been targeting social media and other employment policies of union and non-union employers alike that can be reasonably interpreted as preventing employees from engaging in union activity and other protected concerted activity under the NLRA. Similarly, the DOJ is cracking down on employers that do no lawfully engage in the employment eligibility verification process or discriminate in the hiring, retention or termination of an individual based on his or her actual or perceived citizenship status, national origin or native language.
Partnership agreements between government agencies are not rare. In fact, the OSC has more than 50 partnership agreements with federal, state and local agencies, including the Equal Employment Opportunity Commission.