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Measure Aimed at Protecting the Rights of Undocumented Workers

Last week we learned of the President’s idea of comprehensive immigration reform through his draft outline that highlighted, among other things, the need to promote accountability for employers who deliberately hire and exploit undocumented workers. The Administration’s recommendations for achieving this goal include a better employment verification system, more comprehensive protections for workers, and a legalization program that requires the current undocumented population to come out of the shadows and get right with the law.

While the successes of these ambitious goals are yet to be seen, the Administration has taken a step to prevent unscrupulous employers from retaliating against undocumented workers. The revised Memorandum of Understanding (MOU) between the Department of Homeland Security (DHS) and the Department of Labor (DOL), obligates the DHS law enforcement arm (ICE) to refrain from civil immigration enforcement at any worksite that is the subject of an ongoing DOL investigation or any related proceeding in an effort to allow undocumented workers to exercise their labor rights. Apart from coordinating ICE and DOL enforcement activities, this agreement also provides for ICE to consider allowing witnesses to remain in the country if they are needed for DOL enforcement efforts. MOU further acknowledges that effective enforcement of labor and immigration law requires freedom from “inappropriate manipulation,” including false representations by ICE agents.

However beneficial this accord may be, it does not protect those workers who seek to enforce their rights through avenues other than through the DOL, such as in cases concerning a lawsuit for unpaid wages in federal court. Another matter of concern is that of the exceptions for immigration enforcement activities deemed by ICE to be “independently necessary to advance an investigation relating to national security, the protection of critical infrastructure…. Or a federal crime other than a violation relating to unauthorized employment.” If these exceptions were to be construed broadly they could undermine the agreement as a whole. Furthermore, ICE is constrained only “during the pendency of the DOL investigation and any related proceeding.” In other words, ICE must steer clear only while the DOL enforcement activities are pending, once they are concluded, ICE can presumably step right in. As a result, this could deter workers from asserting their rights in the first place.

While this agreement seems to be well intended at its core, ultimately the true test of the Administration’s commitment to protecting workers and penalizing unscrupulous employers will be reflected by the seriousness with which the agencies carry out their tasks.

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