By Stephen R. McCutcheon, Jr., Attorney at Law
For the past five years we have seen a growth in the interrelation and collaboration between state and federal agencies, and between agencies within the federal government. For example, agencies such as the Department of Labor, OSHA, and IRS cooperate regarding investigations, and will make referrals of potential violations within another agency’s jurisdiction. The National Labor Relations Board (NLRB) and Office of Special Counsel for Immigration Related Unfair Employment Practices of the U.S. Department of Justice (OSC) are the latest agencies to enter into such collaborative agreements.
The jurisdiction of the NLRB is limited to enforcement of the National Labor Relations Act, while the OSC enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA). The INA prohibits discrimination on the basis of citizenship, national origin, or immigration status in the hiring or firing of employees, and penalizes employers who fail to follow or discriminate during the I-9 and E-Verify employment verification processes.
In August, the NLRB distributed its Memorandum of Understanding with the OSC which provides for the collaboration and coordination of the two agencies regarding case-handling and the sharing of information. When processing a case, if the NLRB or OSC believes there may be a violation within the jurisdiction of the other agency, they may refer the case to the other agency, share files and information, and jointly investigate potential violations. In addition to providing for referrals, the MOU makes the NLRB the agent for accepting complaints under the INA that fall within the OSC’s jurisdiction. The OSC is extremely vigorous in pursuing employer violations regarding the I-9 process, and with the expected mandates that employers use E-Verify, we can be certain that employers will face increasing scrutiny regarding their actions in verifying an applicant’s eligibility for employment. It is important that employers keep current regarding their rights and responsibilities regarding completion of I-9 forms and the use of E-Verify.