DOL and NLRB Enter Into Information Sharing Agreement

By Stephen B. Maule - McMahon Berger P.C.

January 28, 2022

Employers facing an investigation by either the U.S. Department of Labor Wage and Hour Division (DOL) or the National Labor Relations Board (NLRB) may now find themselves being investigated by both.  The DOL’s Wage and Hour Division enforces numerous federal laws pertaining to wages (such as the Fair Labor Standards Act and the Davis-Bacon Act), safety, and leave. The NLRB enforces the National Labor Relations Act and the right of employees to engage in protected, concerted activity such as union organizing. Both agencies investigate alleged employer misconduct that relates to the laws they are tasked with enforcing, but it was uncommon for these agencies to share with each other information obtained during their investigations. A new agreement between the agencies not only will change that practice, but also will open employers to additional administrative scrutiny.

The DOL’s Acting Administrator of the Wage and Hour Division and the NLRB’s General Counsel have executed a Memorandum of Understanding to “address the need for information sharing, joint investigations and enforcement activity, training, education, and outreach” between the two agencies.

Pursuant to the Memorandum, the DOL and NLRB may share “any information or data that supports” either agency’s mandates. Such information or data may be shared whether it came to be known during the course of the investigation or otherwise, such as through a referral and subsequent review of the applicable investigation file. To obtain information from another agency, a simple request need be made to the designated individual responsible for receiving such requests.

Of particular importance, if an investigator of one agency has reason to believe there may be unlawful conduct that falls within the jurisdiction of the other agency, the investigator may advise the employee(s) that an opportunity exists to file a complaint with the other agency. In addition, agency personnel in such circumstances will provide informational materials to the employee(s) about the other agency’s laws and potential remedies to assist the employee(s) in pursuing their claim(s). Further, the Memorandum states the agencies may conduct coordinated investigations where the allegations include matters arising within both agencies’ jurisdictions. Further, each agency is authorized to train employees of the other agency in identifying cases and issues that may arise under the agency’s jurisdiction.

Employers faced with an investigation from either the DOL or NLRB should be aware that the information provided to one agency may be shared with the other and subjected to additional scrutiny. For instance, information an employer provides in an NLRB investigation of an unfair labor practice charge that leads to a suspicion that certain workers are being improperly classified as independent contractors rather than employees might be referred to the DOL Wage and Hour Division and result in an audit for unpaid minimum wages and overtime for such workers.  To minimize their risks, employers should be prepared for agency investigations in advance, and retain competent counsel to ensure that no more information is being shared with either agency than is necessary. McMahon Berger can provide employers with guidance on how to be prepared for a government investigation and limit the potential for another agency being apprised of violations.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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