The Equal Employment Opportunity Commission (“EEOC”) and the Wage and Hour Division of the Department of Labor (“WHD”) entered into a far-reaching Memorandum of Understanding (“MOU”) last week under which the two agencies agreed to work together to increase enforcement of the federal laws administered by the two agencies through information sharing, joint investigations, training and outreach.
Under the MOU, the WHD and the EEOC may share any information or data that supports the other agency’s enforcement activities, whether the information was obtained in the course of an investigation or from another source, to the extent permitted by law. Such information sharing may include: complaint referrals from one agency to the other; information contained in complaint files or investigative files relating to alleged violations of the law; reports filed or data produced by employers to each agency (such as EEO-1 Reports or payroll records under the FLSA); and statistical analyses or summaries and other information not otherwise prohibited by law.
Areas of emphasis to be targeted under the new information-sharing agreement include:
- Employment discrimination based on race, color, religion, sex, national origin, age (for those 40 and older), 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
- Leave-related discrimination based on disability, pregnancy or caregiving responsibilities
- Employment opportunities for individuals with disabilities
- Employment structures where employees have been misclassified as independent contractors and/or where joint employer liability may facilitate compliance and accountability under the law
- Unlawful retaliation against workers who assert workplace rights
- Retaliatory exploitation of immigration status, which discourages workers from asserting their rights.
Coordinated Investigations and Enforcement
The MOU also demonstrates a clear commitment by both agencies to ramp up enforcement efforts. If, during an investigation, respective agency personnel have reason to believe that conduct may have occurred that the other agency could deem unlawful, they must advise the potential complainant or filing party of their ability to file a charge of discrimination or complaint with the other agency. Agency personnel must also provide the individual with informational materials prepared by the other agency informing them of their rights and remedies under the statutes enforced by the other agency, as well as information on how to contact the other agency.
The MOU also provides for the conducting of joint investigations of matters arising within both agencies’ jurisdictions. If the agencies decide to conduct a coordinated investigation, and a violation of law is found within each agency’s respective purview, the agencies will explore whether it is appropriate for one agency to settle or conciliate its matter while the other holds its matter in abeyance, considering under which agency’s statute would be most feasible and practical to proceed. If one agency holds its matter in abeyance, the other agency must consult with the first agency before settling or concluding conciliation of its own matter.
If the agencies decide not to hold either matter in abeyance, then they must explore with the charging party, respondent and any other relevant party whether they consent to publicize any possible resolution. If either party declines to consent, the WHD and the EEOC must negotiate separate administrative settlements with the relevant parties where appropriate. In this case, neither agency’s settlement (nor its press release, if any) may make any mention of the violation of law found by the other agency or the coordinated investigation, nor disclose any information from which it may be inferred that there was another charge or investigation at the other agency, unless the other agency has already publicized the information.
Statutes to be impacted under the increased enforcement efforts of the MOU include:
- The Fair Labor Standards Act (“FLSA”), including the 2022 PUMP Act
- The Equal Pay Act (“EPA”)
- The Davis Bacon and Related Acts
- Title VII of the Civil Rights Act (“Title VII”)
- The McNamara O’Hara Service Contract Act (“SCA”)
- The Age Discrimination in Employment Act (“ADEA”)
- The Walsh-Healy Public Contracts Act, the Migrant and Seasonal Agricultural Worker Protection Act
- Title I of the Americans with Disabilities Act (“ADA”)
- The Immigration and Nationality Act
- The Genetic Information Nondiscrimination Act (“GINA”)
- The Employee Polygraph Protection Act
- The Family and Medical Leave Act (“FMLA”)
- The Pregnant Workers Fairness Act of 2022 (PWFA)
Training and Outreach
Under the MOU, where the parties mutually determine it to be appropriate, the WHD and the EEOC must both: provide training to each agency’s staff related to the identification of issues that may arise under the other agency’s jurisdiction; engage in joint outreach and public education; share or co-develop training materials and programs; and/or develop joint policy statements and technical assistance documents when appropriate.
Employers can expect to see an increase in investigations given the WHD’s and the EEOC’s commitment to heightened enforcement and their ability to share information and coordinate investigations. Against this backdrop, employers should consult with counsel regarding scope and content of information to be produced to or shared with either agency, whether during an investigation or in connection with federally mandated reporting, given the possibility that such information may be shared with both agencies and open the door for the other to intervene.
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