At issue is whether the Labor office that monitors contractor compliance with anti-discrimination laws can leave it to the Homeland Security Department's Immigration and Customs Enforcement bureau to verify workers' immigration status.
In November 2010, Patricia Shiu, director of Labor's Office of Federal Contract Compliance Programs, issued a directive overturning George W. Bush administration guidance requiring OFCCP investigators in specified cases to examine I-9 immigration status forms or to use Homeland Security's electronic e-Verify program to identify illegal workers.
Under the new directive, OFCCP is focused less on immigration status and more on racial and gender discrimination. Its previous practice of examining I-9 forms was limited to routine on-site evaluations of contractor compliance and was not used during investigations prompted by specific complaints -- for fear of discouraging undocumented workers from reporting perceived discrimination.
On Oct. 20, the office announced a settlement it had reached with Texas-based Caviness Beef Packers, which has a $20 million contract to supply meat products for the federal school lunch program. The resulting conciliation agreement resolves findings that the company discriminated against job applicants on the basis of race and gender by rejecting them for positions at its two meat processing facilities. Caviness agreed to pay $600,000 to 746 applicants (plus pay back wages and interest), rehire at least 81 of those workers and revise its hiring process.
"The law is clear," Shiu said at the time. "Discrimination will not be tolerated by employers who profit from lucrative government contracts. We are committed to protecting workers from discrimination, including the hundreds of qualified white, black, Asian and female job seekers involved in this case."
The announcement prompted an inquiry to OFCCP from Monique Miles, an attorney with the Immigration Reform Law Institute, a Washington group that seeks to protect legal rights and property of U.S. citizens from "damages caused by unlawful immigration."
According to institute documents provided to Government Executive, the attorney phoned OFCCP staff member Parag Mehta for clarification on the origins of the Caviness case and asked him whether Labor knew how many of the meat company's employees were "illegal aliens."
When told of Labor's November directive discontinuing citizenship checks on contractor employees, the institute attorney said she informed the OFCCP official that federal contractors are required to use the e-Verify program.
In her institute memo summarizing the incident, Miles cited as authority a 2009 U.S. district court ruling in a case brought by the U.S. Chamber of Commerce against Homeland Security Secretary Janet Napolitano. (Homeland Security's website states that e-Verify, while voluntary for most businesses, "is mandatory for some employers, such as those employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation e-Verify clause and employers in certain states.")
The OFCCP official said, according to the institute attorney, Labor is no longer coordinating or referring cases to ICE.
Miles concluded in her memo that Labor "is shirking its responsibility to protect U.S. workers by turning a blind eye to the presence of unlawful workers at contractors' worksites."
That view was echoed by Ira Mehlman, media spokesman for the Federation for American Immigration Reform, which pursues stricter enforcement of immigration laws. "It is odd, to say the least, that the department charged with enforcing labor laws would adopt a policy that precludes them from determining if illegal aliens are being employed," he told Government Executive. "It is additionally disturbing that DOL is both ignoring an executive order designed to ensure that companies that benefit from lucrative government contracts employ legally eligible workers and withholding information from ICE, which is responsible for enforcing immigration laws."
A Labor Department spokesman in an email cited the aforementioned 2008 executive order that said, "federal contractors must verify the employment eligibility of their employees by using an electronic verification system designated by the secretary of Homeland Security, commonly known as e-Verify. DHS enforces this requirement and administers the e-Verify system. In light of this method of employment verification, it is no longer efficient or effective for OFCCP investigators to inspect I-9s during their on-site compliance reviews. Rather than continuing this practice, we decided to concentrate our resources on enforcing the non-discrimination provisions that OFCCP enforces."
A DHS spokeswoman, Gillian Christensen, said, "while ICE enjoys a strong working relationship with the Department of Labor, we are not in a position to comment on any of their internal policies or directives." She also declined to discuss whether ICE receives referrals from Labor. "ICE receives tips, intelligence and referrals from a variety of sources," she said. "The nature of these sources is law enforcement-sensitive and, as a matter of policy, is not something we discuss publicly."
Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee who has long favored a crackdown on illegal immigration, said in an email to Government Executive, "The Obama administration's actions continue to show that they are putting illegal immigrants ahead of the interests of American workers. It's unfortunate that the Department of Labor is not doing everything it can to help put unemployed Americans back to work. While it is true the Department of Homeland Security administers the federal e-Verify program, the Department of Labor has a responsibility to team up with other agencies to ensure jobs are protected for legal workers."