Timothy W. Bubenik Associate

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The Changing of The Guard: How New Immigration Policies Will Affect Department of Labor Investigations

While the effects of the new administration’s immigration policies on the undocumented population is not yet fully known, it does appear that fears over the new direction of such policies have made many undocumented workers leery of cooperating with the United States Department of Labor (“DOL”).  Bloomberg BNA has reported that individuals who are eligible for back pay from Wage and Hour investigations are refusing those payments out of fear that they will alert immigration officials as to their whereabouts.  While one might understand why undocumented workers may not wish to create a paper trail, it begs the further question of what efforts these people will now take to avoid federal investigators.

For the past few years there has been an uneasy alliance between undocumented workers and DOL.  Individuals in this country illegally are often preyed upon by unscrupulous employers who use the employees’ fears of deportation to leverage complacency to unfair working conditions.  However, DOL enforcement agencies have offered assurances that they would not take into account citizenship status of workers who assist in investigations that expose improper employment practices.

As DOL strengthened its outreach efforts to immigrants, often sending agents who speak the native language of the workers into their communities, undocumented workers began to trust DOL as a government agency that had their best interests at heart.  These workers have become whistle blowers and have many times given investigators key pieces of evidence that have led to settlements.  As a result, many undocumented workers have received payments as part of those settlements.

What makes the report from Bloomberg so interesting is not the fact that undocumented workers are refusing payments, but what this refusal indicates about the future relationship between DOL and undocumented workers.  DOL has expended many resources cultivating their relationship with the undocumented population which has provided a great wealth of information.  Undocumented workers have played a key role in DOL enforcement activities, often influencing the type, frequency, and methods of investigation used.  Without the participation of these groups, DOL will lose one of its strongest resources in conducting investigations.

As a result, employers should anticipate a shift in DOL’s investigatory practices that could potentially lead investigators into areas and industries that have not seen much recent activity.  DOL may also begin to employ different methods and tactics when it comes to conducting investigations as those previously relied on are no longer available.  Employers who find themselves under investigation should consult with counsel to determine the best course of action in this quickly changing political environment.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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