Expect More Government Investigations – the DOL and ICE Agree To Share “Notes” About Employers
The Department of Labor (DOL) and Department of Homeland Security (which includes Immigration Customs Enforcement—ICE) entered into a Memorandum of Understanding (MOU) on March 31, 2011. The purpose of the MOU is to help both agencies (DOL and ICE) share information in relation to their respective investigative efforts that is acquired during a government investigation involving an employer. In short, ICE and DOL have formally agreed to share information that either agency acquires during their investigative process which will lead to more government investigations. In the MOU, DOL specifically agrees “to assist ICE’s efforts . . . by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.” Both agencies agree “to create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status. ICE agrees to develop a means to refer to DOL information concerning violations of DOL’s civil work site authorities described in section III of this MOU.”
There has always been discussion that the DOL and ICE share information pursuant to a 1998 MOU that promoted shared interests. Now, however, there is official confirmation of this directive with the recent MOU. The MOU serves as another example of the government stepping up their efforts to increase their information channels in relation to an employer’s I-9 and immigration compliance matters.
Though ICE is formally agreeing to refrain from engaging in DOL and ICE investigations at the same time, employers should be aware that there are limited circumstances when dual investigations are permitted to occur. These circumstances include instances relating to national security, protection of critical infrastructure, or a federal crime other than a violation relating to unauthorized employment. Even though the DOL and ICE have separate enforcement authorities, an overlap of their particular government initiatives will certainly be an issue.
For those employers with pending DOL wage and hour investigations, it is very important that employers not share more information to the DOL than necessary during the investigation. Specifically, employers should know how to comply with a DOL investigation while also limiting the information that is shared it in order to minimize exposure to immigration compliance liability if information is shared with ICE.
It is also very important to know what employees might say during the investigative process. If an employee has already told you “red flag” information (anything relating to a fake name, fake documents, etc.) during their employment, it is likely he or she will tell that information to the DOL investigator if the employee is interviewed during the investigative process. Because of this issue and other issues that might arise during a DOL investigation that can lead to a subsequent ICE investigation, it is important to take proactive steps now to ensure your company has the necessary immigration compliance practices and policies.
The main takeaway for employers is to have proper workplace and immigration policies in place, know your workforce, and always engage your legal counsel in any government investigations.
Daniel N. Ramirezis a named partner at Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.