This summer, the U.S. Department of Justice announced that the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) signed a Memorandum of Understanding (“MOU”) with the National Labor Relations Board (“NLRB”), establishing a partnership between the two agencies. As a result, the two agencies can now share information, refer matters to each other and coordinate investigations. According to Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division, “Employers cannot 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 antidiscrimination provision and the National Labor Relations Act.”
OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act which prohibits citizenship status and national origin discrimination in hiring and firing, including discriminatory practices related to the Employment Eligibility Verification Form I-9 and E-Verify processes. The new MOU allows the agencies to make referrals to each other and provides for cross-training and technical assistance to ensure that staff within each agency identify appropriate referrals. Accordingly, during an intake interview or case processing, if OSC or the NLRB deems that the alleged unlawful conduct also may fall within the jurisdiction of the other agency, the agency will advise that an opportunity may exist to file a charge with the other agency. Under the MOU, where both agencies have retained jurisdiction over related charges, both agencies will coordinate their investigations, will share information and participate jointly in the investigation, with investigators from each agency free to communicate directly on matters related to the charge.
As a consequence, the NLRB can now refer cases to OSC if it deems that an employer has engaged in discriminatory practices based on citizenship status or national origin. Similarly, OSC can refer matters to the NLRB if it learns that an employer has engaged in activities involving infringement on concerted activities, such as the right to form, join, decertify or assist a labor organization, to bargain collectively through representatives of their own choosing or to refrain from such activities.