Navigating the Relationship between the DHS and the DOL: The Need for Federal Legislation to Protect Immigrant Workers' Rights
Braker, Julie, Columbia Journal of Law and Social Problems
High-visibility workplace raids have drawn attention to the relationship between the Department of Homeland Security (DHS) and the Department of Labor (DOL) and how it affects workers' rights. To better align their interests, these agencies recently revised their interagency memorandum of understanding (MOU). This updated MOU restricts DHS's ability to conduct immigration enforcement when the DOL is investigating labor violations. This Note highlights the main features of the MOU and looks at its strengths and weaknesses. The MOU protects against immigration enforcement during a DOL investigation, but does not similarly preclude enforcement while workers are asserting their rights in other ways, such as state and federal litigation. After analyzing the MOU, this Note explores other possibilities for protecting workers' rights, including interagency monitoring and limiting immigration enforcement during employment litigation and other agency investigations. Finally, this Note advocates for the passage of the POWER Act, proposed legislation that incorporates components of the DHS-DOL MOU and provides other protections for immigrant workers.
Over the past few years, immigration and labor issues have increasingly overlapped with one another.1 Immigrants comprise 11% of all U.S. residents, 14% of all U.S. workers, and 20% of all low-wage workers.2 Unauthorized workers3 make up approximately 5% of the workforce.4 Irnmigrants often work in the least desired jobs, congregating in "low-wage, low-skill jobs in marginally profitable, low-capital, small, often new and family-run enterprises; in temporary, seasonal, or irregular employment; and in the underground economy."5
Unauthorized workers are especially vulnerable to workplace abuses, as fear of deportation often chills the lodging of public complaints.6 If an employer violates the law by, for example, paying workers less than the minimum wage or disregarding workplace safety standards, an immigrant worker may rationally decide to not complain to the employer or not report the violations to the appropriate agency, fearing that the employer could jeopardize his or her immigration status. Although the undocumented-immigrant population in the United States is beginning to decrease,7 protections for unauthorized workers will continue to be important for the foreseeable future,8 as an estimated eight million unauthorized workers work in the United States.9 In addition, major industries such as agriculture, construction, manufacturing and hospitality rely heavily on the labor of unauthorized workers, further highlighting the need for protections for these workers.10
Despite the fact that inimigration and labor problems often accompany one another, the efforts of the government agencies that focus on these issues, the Department of Homeland Security (DHS) (which houses Immigration and Customs Enforcement (ICE)) and the Department of Labor (DOL), sometimes contradict one another. When conflicts arise, it is often DOL's laborenforcement goals, and not DHS's immigration-enforcement goals, that are thwarted, due to ICE's unconstrained enforcement power,11 which can "generate . . . externalities that impact the DOL, chill the reporting of labor violations, and ultimately frustrate the DOL's ability to identify exploitative employers."12
These conflicts have manifested themselves in certain worksite raids by ICE, the investigative branch of DHS. For example, in late January 2007, ICE interfered with the labor rights of workers when the agency raided a Smithfield Foods pork-packing plant, searching for undocumented immigrants who might be working at the plant.13 An organizer for the United Food and Commercial Workers, a union attempting to represent the workers, alleged that management at the plant began collaborating with ICE after a walkout by immigrant workers the previous summer.14 The raids "provoked protests . . . from union officials, who said the company, Smithfield Foods, had collaborated with the authorities searching for illegal immigrants to discourage its workers from organizing. …