On October 12, 2021, Secretary of Homeland Security Alejandro N. Mayorkas issued a memorandum directing U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) to develop and update policies to enhance its impact in supporting the enforcement of wage protections, workplace safety, labor rights and other employment laws and standards.
The memo states, “[DHS] can most effectively protect the American labor market, the conditions of the American worksite and the dignity of the individual by focusing our worksite enforcement efforts on unscrupulous employers… [DHS] must adopt immigrant enforcement policies to facilitate the important work of the Department of Labor and other government agencies to enforce wage protections, workplace safety, labor rights and other laws and standards.”
Moving forward, DHS enforcement policies will focus on:
- “reducing the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents”;
- “increasing the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations”; and
- “broadening and deepening mechanisms for coordination” between the Department of Homeland Security and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board and state labor agencies.
DHS subagencies are called on to propose recommendations within 60 days on:
- “policies that have an impact on DHS’ role in supporting the enforcement of employment and labor standards”;
- ways to alleviate or mitigate fears that victims and witnesses of labor trafficking and exploitation have with regard to participating in workplace investigations and prosecutions, including the “consideration of deferred action, continued presence, parole and other available relief for noncitizens who are witnesses to, or victims of, abusive and exploitative labor practices”; and
- policies to ensure E-Verify isn’t abused or misused to suppress reporting of unlawful labor practices.
The memo also ends the use of “mass worksite operations” (calling it a misallocation of resources that chills worker cooperation) and calls for considering DOL requests for support in investigations on a case-by-case basis.
What are they saying?
The memo was widely praised by government leaders in the administration as well as union leaders around the country, with Secretary of Labor Marty Walsh tweeting that “@USDOL stands ready to continue our work with @DHSgov to ensure all people can work free from exploitation and retaliation”; National Labor Relations Board General Counsel Jennifer Abruzzo tweeting that “We, at the NLRB, look forward to deepening our partnerships with other worker-protection agencies and strengthening our coordination with DHS to ensure that all workers, regardless of immigration status, have the full protections they need to freely assert their labor and employment rights”; and the International Brotherhood of Teamsters tweeting that “Enforcement efforts should focus on exploitative employers instead of punishing the workers they exploit. Thank you @DHSgov.”
While DHS component agencies have until the middle of December to provide the secretary with recommendations to achieve the policy priorities set out in the memo, this appears to be the first step in implementing forthcoming recommendations on ways to increase union organizing and collective bargaining from President Biden’s Task Force on Worker Organizing and Empowerment. According to news reports, those recommendations were expected to be issued on October 23, 2021, and would identify ways “to promote [the] Administration’s policy of support for worker power, worker organizing and collective bargaining,” including “in areas of the country with hostile labor laws, for marginalized workers (including women and persons of color) and hard-to-organize industries and in changing industries.”
Basil Thomson is a senior associate with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
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