On July 8, 2013, the DOJ announced that its Civil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) entered into a Memorandum of Understanding (MOU) with the NLRB. The MOU allows the two agencies to share information, refer matters to each other and coordinate investigations.

The MOU allows the NLRB to refer matters before the agency to OSC when they suggest a possible violation of the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination on the basis of citizenship status and national origin in employment decisions and the Form I-9 and E-Verify processes. The DOJ will refer any relevant matters to the NLRB, including possible infringements of the right of employees to form, join, decertify or assist a union, and to bargain collectively. The MOU provides for cross-training and technical assistance to help the staff of each agency identify relevant matters to refer.

Update: On August 9, 2013, the Associate General Counsel for the NLRB released an operations memorandum and charge referral documents to its regional offices describing the scope of prohibitions under the Immigration and Nationality Act (INA) to be enforced by the OSC and guidelines for referring charges to the OSC. Employers should expect NLRB regional directors and their staff to contact or threaten to contact the OSC where NLRB election or unfair labor practice investigations involve obstinate employers that appear to employ undocumented workers.