Employers Beware – NLRB and DOL Will Partner on Enforcement

The National Labor Relations Board and Department of Labor have announced an agreement to facilitate information sharing, referrals, joint investigations, and enforcement. The agencies assert that, “The partnership will help ensure that employers pay workers their rightful wages and that workers can take collective action to improve their working conditions without fear of retaliation.”

In the past, there has been little cross-agency cooperation. An employer facing enforcement action from one agency was not likely to encounter interest from a separate agency, even if the issue might fall within the jurisdiction of both. This development means that employers could face more aggressive agency activity. And since many wage issues impact more than a single employee, we can expect the NLRB to seize the opportunity to get involved, in keeping with this administration’s clearly expressed pro-union agenda.

The agreement identifies a panoply of areas of particular concern to the DOL and NLRB, including: unlawful compensation practices (minimum wage and overtime); retaliation for exercising rights under the NLRA or laws enforced by the DOL’s Wage-Hour Division (e.g. Fair Labor Standards Act, Family and Medical Leave Act, Migrant Workers Protection Act); working and living conditions; break times; unilateral changes to terms and conditions of employment; unlawful employment practices (e.g. discriminatory failure to hire, retaliatory discipline, threatening immigration or work authorization status); joint employer status; and misclassification of employees as independent contractors. We have already seen both agencies take steps to reverse or limit the previous regulations, guidance, and caselaw on these issues in ways that disfavor employers.