Revised Memorandum of Understanding between the Departments of Homeland Security and labor Concerning Enforcement Activities at Worksftes

Transcription

1 Revised Memrandum f Understanding between the Departments f Hmeland Security and labr Cncerning Enfrcement Activities at Wrksftes I. Purpse This revised memrandum f understanding (MOU) is entered int by the Department f Hmeland Security (DHS) and the Department f labr (DOL). Its purpse is t set frth the ways in which the Departments will wrk tgether t ensure that their respective civil wrksite enfrcement activities d nt cnflict and t advance the missin f each Department. In entering this MOU, bth Departments recgnize the imprtance f enfrcing labr and immigratin laws relating t the wrksite. Effective enfrcement f labr law is essential t ensure prper wages and wrking cnditins fr all cvered wrkers regardless f immigratin status. Effective enfrcement f immigratin law is essential t prtect the emplyment rights f lawful U.S. wrkers, whether citizen r nn-citizen, and t reduce the incentive fr illegal migratin t the United States. The parties further recgnize that effective enfrcement f bth labr- and immigratin-related wrksite laws requires that the enfrcement prcess be insulated frm inapprpriate manipulatin by ther parties. II. Affected Cmpnents within the Departments The principal and respnsible parties t this MOU are the fllwing cmpnents within each Department. On behalf f the Department f Hmeland Security, the principal cmpnent is U.S. Immigratin and Custms Enfrcement (ICE). On behalf f the Department f labr, the principal cmpnents are the Wage and Hur Divisin (WHO), the Office f Federal Cntract Cmpliance Prgrams (OFCCP), the Occupatinal Safety and Health Administratin (OSHA), the Office f labr Management Standards (OlMS), and the Office f the Assistant Secretary fr Plicy {OASP}. III. Definitins and Understandings Fr purpses f this MOU- A. A "labr dispute" means a labr-related dispute between the emplyees f a business r rganizatin and the management r wnership f the business r rganizatin cncerning the fllwing emplyee rights: the right t be paid the minimum legal wage, a prmised r cntracted wage, and vertime; the right t receive family medical leave and emplyee benefits t which ne is legally entitled; the right t have a safe wrkplace and t receive cmpensatin fr wrk-related injuries; the right t be free frm unlawful discriminatin;

2 the rights t frm, jin r assist a labr rganizatin, t participate in cllective bargaining r negtiatin, and t engage in prtected cncerted activities fr mutual aid r prtectin; the rights f members f labr unins t unin demcracy, t unins free f financial imprprieties, and t access t infrmatin cncerning emplyee rights and the financial activities f unins, emplyers, and labr relatin cnsultants; and the right t be free frm retaliatin fr seeking t enfrce the abve rights. B. The wrksite enfrcement activities f DHS include the civil authrities f ICE t inspect Frms 1-9, t investigate, t search, t fine, and t make civil arrests fr vilatins f the immigratin laws relating t the emplyment f aliens withut wrk authrizatin. They d nt include any f ICE's criminal authrities. C. The wrksite enfrcement activities f DOL include the authrity f WHO, OFCCP, OSHA, and OlMS t enfrce the requirements f the labr laws under their jurisdictin, including the relevant prvisins f the Fair labr Standards Act Family and Medical leave Act, the Migrant Sea snal Wrker Prtectin Act, the Davis Bacn and Related Acts, the Service Cntract Act, Executive Order 11246, the Occupatinal Safety and Health Act, the Vietnam Era Veterans' Readjustment Assistance Act, Sectin 503 f the Rehabilitatin Act f 1973, the labr-management Reprting and Disclsure Act f 1959, and Sectin 211a f the labr-management Relatins Act f OASP des nt have enfrcement authrity. IV. Crdinatin and Decnflictin ICE and the principal DOL cmpnents agree t the fllwing cmmitments and exchanges in rder t ensure crdinatin and decnflictin f their respective civil enfrcement activities. A. Except as nted in paragraph C, ICE agrees t refrain frm engaging in civil wrksite enfrcement activities at a wrksite that is the subject f an existing DOL investigatin f a labr dispute during the pendency f the DOL investigatin and any related prceeding. ICE will cntinue its existing practice f assessing whether tips and leads it receives cncerning wrksite enfrcement invlve a wrksite with a pending labr dispute. DOL agrees t assist ICE's effrts under this paragraph by prviding ICE with timely and accurate infrmatin t allw fr identificatin f verlapping enfrcement activity. B. ICE further agrees t be alert t and thwart attempts by ther parties t manipulate its wrksite enfrcement activit ies fr illicit r imprper purpses. ICE will cntinue its existing practice f assessing whether tips and leads it receives cncerning wrksite enfrcement are mtivated by an imprper desire t manipulate a pending labr dispute, retaliate against emplyees fr exercising labr rights, r therwise frustrate the enfrcement f labr laws. DOL agrees t assist ICE's effrts under this paragraph by infrming ICE f infrmatin DOL may have that ther parties seek t manipulate a pending labr dispute, retaliate against emplyees fr exercising labr rights, r therwise frustrate the enfrcement f labr laws.

3 C. Ntwithstanding paragraph A, ICE may engage in wrksite enfrcement activities at a wrksite that is the subject f a pending labr dispute if- the Directr r Deputy Directr f ICE determines the enfrcement activity is independently necessary t advance an investigatin relating t natinal security, the prtectin f critical infrastructure (e.g., prts, pwer plants, r defense facilities), r a federal crime ther than a vilatin relating t unauthrized emplyment; the enfrcement activity is directed by the Secretary f Hmeland Security; r the enfrcement activity is requested by the Secretary f labr, the Slicitr f labr, r anther Department f labr fficial designated by the Secretary f labr. D. In thse instances in which ICE decides t engage in a wrksite enfrcement activity under paragraph C, ICE agrees t prvide DOL ntice unless the Directr r Deputy Directr f ICE determines that ntice wuld vilate federal law r wuld therwise cmprmise the ICE investigatin. ICE further agrees t make available fr interview t DOL any persn ICE detains fr remval thrugh a wrksite enfrcement activity cnducted under paragraph C, prvided the interview is cnsistent with federal and state law, wuld nt cmprmise an nging ICE investigatin r prsecutin, and is apprved by the relevant U.S. Attrney's Office. DOL agrees that any DOL interview cnducted under this paragraph shall be at DOL's expense and shall nt interfere with r delay remval prceedings except as prvided in paragraph F belw. E. Unless specifically agreed t by bth DOL and ICE, ICE and the DOL cmpnents cvered by this MOU will nt cnduct jint r crdinated civil enfrcement activities at a wrksite. F. ICE agrees t cnsider DOL requests that ICE grant a temprary law enfrcement parle r deferred actin t any witness needed fr a DOL investigatin f a labr dispute during the pendency f the DOL investigatin and any related prceeding where such witness is in the cuntry unlawfully. DOL agrees t prvide ICE all needed infrmatin fr ICE t cnsider the request and understands that any parle r deferred actin ICE may grant will rdinarily terminate upn the cmpletin f DOL's investigatin and any related prceeding. DOL further agrees t infrm ICE n a peridic basis determined by ICE and DOL whether parle r deferred actin fr a given witness is still needed and t assist ICE with any mnitring r supervisin f the witness. ICE and DOL retain full wrksite enfrcement authrities (as identified in Sectin III) t seek a visa r ther remedy fr a DOL witness during the pendency f a DOL investigatin and any related prceeding. G. Under n circumstances will ICE persnnel engaged in enfrcement activities at a wrksite suggest that they represent r act fr DOL absent the express apprval f DOL Similarly, under n circumstances will DOL persnnel engaged in enfrcement activities at a wrksite suggest that they represent r act fr ICE absent the express apprval f ICE. H. ICE and DOL agree t create a jint Wrksite Enfrcement Crdinatin Cmmittee t review the implementatin f this MOU, reslve any disputes, wrk in partnership as cases

4 arise, and decnflict civil enfrcement activities. This cmmittee shall meet each quarter unless the parties determine therwise. Any disputes cncerning the implementatin f this MOU that cannt be reslved by the cmmittee shall be reslved by the Deputy Directr f ICE and the relevant Deputy Assistant Secretary r equivalent designated by DOL I. ICE and DOL agree t create a means t exchange infrmatin t fster enfrcement against abusive emplyment practices directed against wrkers regardless f status. ICE agrees t develp a means t refer t DOL infrmatin cncerning vilatins f DOL's civil wrksite authrities described in sectin III f this MOU. DOL agrees t develp a means t refer t ICE infrmatin cncerning ICE's criminal wrksite authrities relating t human smuggling and trafficking; child explitatin; and extrtin r frced labr. J. ICE and DOL agree t ensure that this MOU is disseminated and implemented within ICE and DOL thrugh apprpriate implementatin instructins, emplyee ntificatin, and training. K. ICE and DOL agree t seek each ther's apprval befre issuing press releases that mentin each ther's enfrcement activities. l. ICE and DOL agree t keep cnfidential infrmatin shared pursuant t sectin IV{A) f this MOU. V. Effective Date A. This MOU is effective upn signature and valid until rescinded by either ICE r DOL subject t Sectin V (B). ICE and DOL agree, hwever, t assess the terms and effectiveness f this MOU ne year frm the date f signing and t cnsider whether mdificatins r additins are needed. B. This MOU reflects the full understanding between ICE and DOL n this subject and may nt be mdified withut ICE and DOL's cnsent. Bth ICE and the relevant DOL cmpnents may unilaterally rescind their participatin in the MOU but nly upn written ntice t all ther Signatries prvided at least 60 days in advance. C. This MOU vids and supersedes all previus MOUs n this subject between ICE {including its predecessr, the Immigratin and Naturalizatin Service) and DOl.

5 D. This MOU is an agreement between DHS and DOL, and des nt create r cnfer any right r benefit n any ther persn r party, public r private. Nthing in this MOU r its implementatin is intended t restrict the legal authrity f ICE r the relevant DOL cmpnents in any way. Fr the Department f Hmeland Security ~tjiiito Jhn Mrtn Directr U.S. Immigratin and Custms Enfrcement Department f Hmeland Security Date: DEl; 0 7 lol1 Fr the Department f labr m~j;t M. Patricia Smith Slicitr f labr Department f labr Date: 010(;