By Michael H. Neifach & Thomas L. Petriccione with Jackson Lewis P.C.
Body The Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) have announced they will be collaborating and sharing information to improve their enforcement efforts.
Based upon a Memorandum of Understanding (MOU), the agencies are “forming this partnership to encourage greater coordination between them through information sharing, joint investigations, training and outreach.” This means that some typical DOL audits and investigations regarding immigration matters could lead to investigations by the EEOC under, for example, the Equal Pay Act, Title VII of the Civil Rights Act, and Title I of the Americans with Disabilities Act. It also signals that the agencies are gearing up for more enforcement activity.
The DOL enforces and audits employers regarding their compliance with Temporary Seasonal Visas (H-2A and H-2B visas), H-1B visas, PERM labor certification cases, and prevailing wage determinations, among others. These DOL audits have traditionally sought to confirm that:
Employers with H-1B employees are paying the prevailing wage or the actual wage, whichever is higher;
- Labor Condition Application attestations are being followed;
- Foreign workers are being offered the same working conditions as U.S. workers and being paid in accordance with immigration filings;
- Foreign workers are not being required to pay the ACWIA Training Fee; and
- Public Access Files are being maintained properly.
In conducting these audits, the DOL is required to review the employer’s payroll and private records. Under this new MOU, if the DOL finds evidence of suspected discrimination in pay or terms and conditions of employment, the DOL can pass that information to the EEOC more easily than before.
It is more important than ever for employers to self-audit their pay practices to ensure they are in compliance with all immigration and pay equity regulations. Many states, including New York, have passed robust pay equity laws in the past few years that grant employees the right to equal pay for substantially similar work. Additionally, nationality and citizenship status are protected characteristics in many states and under federal law.
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