Warning – Cooperation Between Federal Agencies Means More Liability for Employers!

In our January 2022 E-Update, we discussed a memorandum of understanding (MOU) between the National Labor Relations Board and the U.S. Department of Labor to facilitate information sharing, referrals, joint investigations, and enforcement, and predicted that employers would face more aggressive agency activity. And that is the case, as evidenced by a recent NLRB press release.

Background of the Case. A worker called the DOL’s Wage and Hour Division to complain that he and several other co-workers had not received their wages on their regular payday. Following contact by an DOL-WHD investigator, a supervisor identified the worker responsible for the complaint, stating “there would be consequences.” The worker was then summoned to a meeting with a manager and human resources, where he was questioned about a number of issues, including the DOL complaint. He was then terminated, ostensibly for violations of various policies about which he had never been previously warned.

The ALJ’s Decision. The NLRA protects employees’ rights to engage in concerted activity about their terms and conditions of employment. The NLRB GC argued, and an NLRB Administrative Law Judge agreed, that the worker engaged in such protected concerted activity, when he called the DOL-WHD to complain about the employer’s failure to pay wages. The ALJ further found that the employer failed to show that it would have fired the worker absent his protected concerted activity.

Lessons for Employers. As we noted previously, this type of cross-agency cooperation has been rare up until this point. But now, The NLRB’s press release specifically noted the coordination between the NLRB and the DOL in this case. Thus, employers should be prepared to face enforcement activity from the NLRB where an employee’s complaint to the DOL or other agencies like the Equal Employment Opportunity Commission involve issues impacting more than the one employee.