The U.S. Department of Labor, Wage and Hour Division (DOL-WHD) and National Labor Relations Board (NLRB) announced plans to collaborate “to enhance and maximize the enforcement of the federal laws administered between the two agencies.”  The DOL-WHD enforces the minimum wage and overtime requirements while the NLRB enforces the National Labor Relations Act (NLRA).

Under the parties’ Memorandum of Understanding (MOU), if during the course of an investigation, personnel for DOL-WHD or NLRB learn about activities that may be unlawful conduct that falls within the jurisdiction of the other agency, they will advise the employees of the opportunity to file a charge/complaint with the other agency.  However, in certain cases, the agencies may take it a step further and opt to conduct a coordinated investigation.  DOL-WHD and NLRB staff will undergo training to assist personnel for each group in identifying cases that may come under the purview of the other agency.

The MOU was signed by representatives from the DOL-WHD and the NLRB in December, but was not made public until Thursday, January 6.  The MOU will remain in effect for five years, unless cancelled by either party.

The agencies are exploring ways to “efficiently systematize procedures” to share data that supports each agency’s enforcement mandates.  Areas of focus for the agencies include, in part, the misclassification of employees as independent contractors and the investigation of single or joint employer structures.  According to the NLRB’s federal regulator agenda, beginning in February 2022, the Board plans to again engage in rulemaking regarding the joint employer standard.  Given the current composition of the Board, it is anticipated that any change to the joint employer rule will be more employee-friendly.

Now, with the two agencies working collaboratively, employers should expect that there will be heightened government scrutiny and enforcement on issues like employee classification and joint employer relationships, which are identified priorities for the Biden Administration.

Ballard Spahr proactively works with our clients to advise them on updating their policies and practices to protect against and respond to government enforcement actions and to stay compliant with rapidly changing regulatory standards.

[View source.]