NLRB and ICE Agree to Prioritize Workers Rights Over Immigration Enforcement
June 22, 2016 by Teague Paterson
Federal agencies administer and enforce statutes. At times, agencies find themselves at cross-purposes, where one agency’s actions interfere with another agency’s enforcement activities.
Take, for example, the National Labor Relations Board (“NLRB”), which enforces the National Labor Relations Act (“NLRA”), and the Department of Homeland Security and its sub-agency, Immigration and Customs Enforcement (“ICE”), which enforce the Immigration Reform and Control Act, among others. It has been a common practice for employers to call ICE to disrupt labor organizing, which, of course, is a retaliatory activity prohibited by the National Labor Relations Act. This pernicious employer tactic has been so pervasive that California took action by outlawing such “unfair immigration-related practices” in 2013, when the Legislature passed several bills including AB-263, SB-66 and AB-524. You can read more about these bills in our prior blog post.
Some federal agencies have developed a solution to this problem by negotiating inter-agency agreements that establish protocols and cooperation so that neither agency interferes with, or is used as a tool to disrupt, the other agency’s activities. Last month, the NLRB joined an inter-agency agreement that previously had been negotiated between ICE and the Department of Labor. In doing so, the NLRB, the Equal Employment Opportunity Commission (“EEOC”), and ICE entered into a “Revised Memorandum of Understanding,” which explicitly recognizes that ICE should stay away from, and not conduct audits, raids or other enforcement actions, at workplaces where there is active labor organizing or labor disputes over which the NLRB has jurisdiction. The agreement also recognizes that workers who exercise their rights under the NLRA, including those involved in organizing and/or who challenge their employer’s unfair labor practices, may not be removed by ICE.
Specifically, under the agreement, ICE has agreed to:
- Refrain from intervening at a worksite during a labor dispute or while the NLRB is investigating or prosecuting violations of the NLRA, unless ICE’s action involves national security, protection of critical infrastructure, or any crime other than a violation relating to unauthorized employment; and
- Notify the NLRB before initiating workplace enforcement activity; and
- Decline tips or leads involving workplace violations where it appears the tip or lead is intended to frustrate labor activity.
For its part, the NLRB must:
- Respond to ICE inquiries about the status of its worksite investigations; and
- Assist ICE in determining whether a tip involves an effort to manipulate an NLRB investigation.
These requirements also apply between ICE and the EEOC, which is the other party to the revised agreement. The EEOC investigates and prosecutes violations of federal non‑discrimination statutes such as the Civil Rights Act, the Age Discrimination In Employment Act and the Americans with Disabilities Act.
 A fact documented by Michael Wishnie, The Border Crossed Us: Current Issues in Immigrant Labor, 28 NYU Rev. L. & Soc. Change 389, 391 (2004), available here:
 These laws, among other things, added section 1019 to the California Labor Code which provides protections and enforcement mechanisms to workers who are victims of an employer’s unfair immigration-related practice, available here:
 The agencies call it a “deconfliction” agreement. The agreement can be accessed from the following web page: https://www1.eeoc.gov//eeoc/interagency/action_plan_update_modification_of_deconfliction_mou.cfm?renderforprint=1
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