The Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor’s Wage and Hour Division (WHD) have signed a Memorandum of Understanding to facilitate cooperation between the two agencies through information sharing, joint investigations, training and outreach. 

The WHD’s areas of responsibility include enforcement of the Fair Labor Standards Act, including federal minimum wage, overtime pay, tip retention and recordkeeping, as well as child labor requirements of the Fair Labor Standards Act; nursing mother provisions; Migrant and Seasonal Agricultural Worker Protection Act; Employee Polygraph Protection Act; Family and Medical Leave Act; wage garnishment provisions of the Consumer Credit Protection Act; and employment provisions of several immigration-related statutes. Additionally, the WHD administers various statutes related to federal contractors. 

These areas of responsibility overlap with the EEOC’s responsibility for investigation and enforcement of Title VII of the Civil Rights Act, The Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act and the relatively new Pregnant Workers Fairness Act.

This Memorandum is a voluntary, non-binding document that signals the agencies’ intent to work more closely together and share information that may advance both agencies’ interests in enforcing the various employment laws.  The Memorandum outlines different methods of cooperation, including for example:

• Requesting employer information from the other agency
• Referring complaints to the other agency
• Sharing investigative files, statistical analyses or summaries
• Conducting coordinated investigations and enforcement actions
• Training each agency’s staff about the other agency’s areas of responsibility

The Memorandum also suggests the agencies will work together to explore ways to more efficiently share information and data in a manner that can be easily digested and used by the other agency.  The categories of shared information specifically contemplated by the Memorandum include information related to:

• 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;
• Unlawful denial of family and medical leave and leave-related discrimination based on disability, pregnancy, or caregiving responsibilities;
• Employment opportunities for individuals with disabilities;
• The identification and investigation of employment structures where employees have been misclassified as independent contractors and/or where joint employer liability may facilitate compliance and accountability under the law; and
• Unlawful retaliation against workers who assert workplace rights, including retaliatory exploitation of immigration status to discourage workers from asserting their rights.

The EEOC has previously entered into a Memorandum of Understanding with other federal agencies, including the National Labor Relations Board, the U.S. Department of Justice and the Department of Labor’s Office of Federal Contract Compliance Programs, as have many other federal agencies who have overlapping agendas and priorities.  While there is nothing inherently surprising about the EEOC/WHD Memorandum, it does suggest that both agencies are investing time and resources into updating their technology and processes to more efficiently track, analyze and use the information they receive from employers. 

As a result, employer would be wise to carefully analyze all information, data and documentation provided to either agency, as it may ultimately wind up in the hands of the other.

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