More Cooperation Among Federal Agencies – Which Means More Liability for Employers

In the past, the various federal workplace agencies – the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Department of Labor (and its various divisions, including the Occupational Safety and Health Administration, the Wage-Hour Division, and the Office of Federal Contract Compliance Programs) – did not communicate. Thus, an investigation by one agency was limited to determining whether the employer violated laws enforced by only that agency, regardless of whether there were also possible violations of laws enforced by other agencies. But that is no longer the case, as several recent developments show.

For example, as noted in the EEOC’s recently-released Strategic Enforcement Plan for FY 2024-2028, as discussed elsewhere in this E-Update, it intends to take an “integrated approach [that] acknowledges that protecting workplace civil rights is a shared responsibility that extends beyond the EEOC.” In particular, the EEOC then names the DOL and Fair Employment Practices Agencies.

And to that specific point, the EEOC and the DOL’s Wage-Hour Division just signed a Memorandum of Understanding on September 13, 2023, that increases coordination between the two agencies through information sharing and joint investigations, among other things. In particular, issues of equal pay and lactation breaks invoke laws that are enforced by both agencies (the Equal Pay Act, Title VII’s equal pay requirements, and the Pregnant Workers Fairness Act for the EEOC, and the Fair Labor Standards Act and the PUMP for Nursing Mothers Act for the WHD).

The DOL also signed a MOU on August 30, 2023 with the Federal Trade Commission “to protect workers from anticompetitive, unfair, and deceptive practices.” Among the issues the FTC has recently targeted are non-compete agreements and “gig worker” misclassification issues. We can expect the DOL to cooperate with the FTC on these concerns.

Moreover, as we discussed in the August 2023 E-Update, the NLRB and DOL had signed a similar MOU in January 2022, and have put it into effect, with a recent case in which a worker’s complaint to the WHD about unpaid wages for himself and his co-workers was shared with the NLRB, which also found violations of the National Labor Relations Act in the employer’s termination of the complaining employee. The NLRB found that the worker’s complaint was protected under the NLRA since he was engaged in activity for the workers’ mutual aid and protection.

As a result, employers can expect to face enforcement activity from multiple agencies, with the NLRB in particular taking an expansive view of what is protected concerted activity and asserting jurisdiction over matters that employers previously thought to be individual concerns.