Tuesday, October 12, 2021
Today, DHS Secretary Alejandro N. Mayorkas issued a new memo entitled Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.
The memo opens with three "fundamental principles":
- Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents;
- Increase the willingness o f workers to report violations o f law by exploitative employers and cooperate in employment and labor standards investigations; and,
- Broaden and deepen mechanisms for coordination between the Department o f 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.
Next, Sec. Mayorkas calls for "policy review" to:
- Identify existing and potential policies that have an impact on the Department's role in supporting the enforcement of employment and labor standards.
- Develop agency plans to alleviate or mitigate the fear that victims of, and witnesses to, labor trafficking and exploitation may have regarding their cooperation with law enforcement in the investigation and prosecution of unscrupulous employers.
- Identify the policies and measures that are in place to ensure that E-Verify is not manipulated to suppress unauthorized workers from, or to punish unauthorized workers for, reporting unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation.
Finally, the memo also includes these two nuggets of "immediate guidance":
- Cease mass worksite operations. The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country's unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations. Moreover, such operations are inconsistent with the Department's September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.
- Requests for prosecutorial discretion. I understand the Department of Labor has recently requested support in certain ongoing workplace standards investigations, including by asking that OHS consider whether to exercise prosecutorial discretion for workers who are victims of, or witnesses to, workplace exploitation. These individual requests should be considered on a case-by-case basis, weighing all relevant facts and circumstances. In evaluating these requests,the legitimate enforcement interests of a federal government agency should be weighed against any derogatory information to determine whether a favorable exercise of discretion is merited.