The US Department of Labor’s Wage and Hour Division and the US Equal Employment Opportunity Commission signed a memorandum of understanding on Sept. 13 to “maximize and improve” the enforcement of the federal laws administered by the agencies. It encourages enhanced law enforcement and enables greater coordination between the agencies through information sharing, joint investigations, training and outreach.
The agreement outlines procedures to be followed by both agencies in working together, but it does not limit either agency’s enforcement of their respective statutes.
“The agreement strengthens the agencies’ partnership in areas of mutual interest including worker misclassification, illegal claims and disclosures about earnings and costs associated with work, the imposition of noncompete and nondisclosure provisions, labor market concentration, and the impact of algorithmic decision-making on workers,” law firm Cozen O’Connor wrote in a JD Supra blog post.
Expect the agencies to exchange more employer data, the Society for Human Resources warned. The EEOC enforces federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Pregnant Workers Fairness Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
Meanwhile, the DOL’s Wage and Hour Division enforces federal minimum wage, overtime pay, record-keeping, tip retention and child labor requirements of the Fair Labor Standards Act as well as the PUMP for Nursing Mothers Act and the Family and Medical Leave Act.
The categories of shared information may include:
- Employment discrimination based on race, color, religion, sex, national origin, age, disability or genetic information.
- Unlawful compensation practices, such as violations of minimum wage, overtime pay or wage discrimination laws.
- Working and living conditions of employees.
- Denial of required break times or places for nursing mothers to express milk.
- Unlawful retention of employees’ tips.
- Denial of family and medical leave.
- Suspected misclassification of employees as independent contractors.
- Unlawful retaliation against workers who assert their workplace rights.
By sharing information, an initial investigation by one agency could lead to administrative complaints or litigation from both based on the same circumstances, according to Jonathan M. Crotty, a partner with law firm Parker Poe.
“Employers faced with either a FTC or DOL investigation should consider whether the allegations involved in the matter could result in multi-agency prosecution,” Crotty wrote in a blog post. “Their arguments and legal strategy used to respond to the initial federal inquiry should be structured with the potential for a second administrative investigation at some point in the future.”