On October 12, the U.S. Department of Homeland Security (DHS) released new worksite enforcement guidelines indicating a new direction for the agency. Within his announcement, Secretary Alejandro Mayorkas emphasized DHS’s role in “protect[ing] workers as well as legitimate American businesses.”
As set forth in a memorandum by Mayorkas, the new guidelines highlight the need to ensure “that our Nation’s workplaces comply with our laws” through shifting enforcement scrutiny onto “unscrupulous employers who exploit the vulnerability of undocumented workers.” Additionally, the new guidelines state that mass worksite raids will no longer be carried out and that prosecutorial discretion will be introduced in the adjudication of cases. Finally, policy reviews will be undertaken analyzing the efficiency and compatibility of existing policies with these new guidelines.
The new worksite enforcement priorities represent a departutre from Trump administration policies, particularly the ceasing of mass workforce raids and the shift towards targeting employers instead of unauthorized workers. At the same time, these new priorities represent a return to the Obama administration’s principles regarding worksite enforcement, such as ensuring employer compliance on hiring and labor safety practices.
Worksite Enforcement Guidance
The worksite enforcement guidance is split into three separate categories: fundamental principles of the new guidance, policy reviews of existing policies, and immediate priorities regarding new procedural changes. Each of these categories will be outlined below.
DHS sets out three fundamental principles that guide these new worksite enforcement guidelines. They are as follows:
- Reduce the attractiveness of hiring unauthorized workers by delivering more severe consequences to unscrupulous employers.
- Encourage exploited workers to cooperate with DHS officials in employment and labor standards investigations.
- Synchronize coordination efforts between the multiple federal agencies involved in worksite enforcement, including DHS, Department of Labor, Department of Justice, Equal Employment Opportunity Commission, National Labor Relations Board, and state agencies.
By shifting focus onto employers who exploit undocumented workers, the new priorities depart from the Trump administration’s use of high-profile worksite raids.
The new guidance seeks to review three categories of policies to ensure that they align with the fundamental principles mentioned above. The guidance provides for the following:
- Review of employment and labor standards enforcement policies, including U.S. Immigration and Customs Enforcement’s (ICE) worksite enforcement strategy, the 2011 Memorandum of Understanding between DHS and DOL (as amended in 2016), and any other policies that prevent unauthorized workers from exercising their employment-related rights.
- Review of policies that impact unauthorized workers’ cooperation with federal authorities and development of agency plans to alleviate fear of cooperation. Such plans should provide for the consideration of deferred action, continued presence, or parole, or other relief for unauthorized workers who are victims or witnesses and participate in investigations of worksite violations. Additionally, these new plans should ensure to the greatest extent possible that victims and witnesses are not placed into immigration proceedings during an ongoing investigation.
- Review of E-Verify and related policies to ensure that electronic worker verification is not used by unscrupulous employers to deter unauthorized workers from reporting workplace violations such as dangerous working conditions and substandard wages.
New Immediate Priorities
Finally, the new worksite enforcement guidance focuses on implementing two immediate priorities, both of which are also consistent with the recently-released DHS immigration enforcement priorities:
- Termination of mass worksite raids. The memorandum criticizes the use of mass raids in the past, arguing that they misallocated enforcement resources that could have gone towards the investigation of exploitative employers and chilled cooperation with exploited workers. The memo notes that mass raids also served as possible retaliation measures against unauthorized workers who reported workplace violations to federal authorities or cooperated in federal investigations.
- Implementation of prosecutorial discretion. Following requests from the U.S. Department of Labor seeking additional support in workplace standards investigations against employers, DHS will begin to employ prosecutorial discretion in cases where undocumented workers are victims or witnesses of workplace exploitation or abuse. Discretion will be used on a case-by-case basis, based on all the available facts. These facts will be weighed against the enforcement interests of federal agencies.
The new worksite enforcement guidance seeks to both focus workplace enforcement measures against exploitative employers and to protect unauthorized workers from any retaliation or immigration enforcement after reporting violations of workplace standards. The guidelines return the focus of DHS worksite investigations onto unscrupulous employers, not unauthorized workers.
The guidance provides for a review of existing DHS worksite policies, including those that might discourage cooperation from prosecutorial discretion to facilitate cooperation. Through the introduction of prosecutorial discretion and a heightened awareness to the vulnerabilities of unauthorized workers when trying to report workplace violations, the Biden administration is attempting to increase employer compliance while treating workers in a more humane and just manner.
The National Immigration Forum would like to thank Joshua Rodriguez, policy intern, for his extensive contributions to this explainer.