The past few weeks have brought potentially important developments for employers at both the local and national level. First, in Chicago, the Regional Director for Region 13 of the National Labor Relations Board, Peter Sung Ohr, and the Director of the Illinois Department of Labor (DOL), Joseph Costigan, recently signed a Memorandum of Understanding (MOU) to strengthen cooperation and collaboration between the two agencies. Under the MOU, the agencies have agreed to refer charges to each other if they receive information while processing a case that may be within the jurisdiction of the other agency, if the individual consents to the referral. The MOU also provides for cross-training between the two agencies and procedures for sharing information “where appropriate.”
While this type of cooperation agreement between a state and federal agency is not uncommon (among others, the IDHR and EEOC have long had a similar agreement), this pairing is not as obvious given the laws that they enforce. A complete list of the multitude of laws enforced by the Illinois DOL can be found here. At this point, it is not clear what specific types of information will be shared between the two agencies. What is clear, however, is that both agencies will now be on the lookout for information that might be within the other agency’s jurisdiction. For example, if during the course of investigating an unfair labor practice charge, the NLRB receives information regarding the employer’s overtime policies or practices that might be a violation of the Illinois Minimum Wage Law, the NLRB now has an official vehicle to notify the Illinois DOL.
In light of the NLRB’s continued aggressive enforcement efforts and particular focus on employee conduct rules, this is certainly not good news for Illinois employers. What may have previously been an NLRB investigation may now also prompt an Illinois DOL investigation.
On the bright side, though, the NLRB’s Assistant General Counsel released a memorandum with additional guidance regarding default judgment language, first introduced in 2011, that requires settling parties to waive their rights to contest a default judgment in the event of any breaches of informal settlement agreements. That so-called “Performance” language included no temporal or geographic limitations, and could even have applied to vague “catch-all” language on required notice postings. In our experience, the sweeping language has interfered with Regions’ abilities to ink informal settlements with employers, who have been rightly reluctant to enter into agreements that leave them with the perpetual threat of immediate default judgment.
In an apparent nod to those concerns, the new memorandum gives Regions discretion to remove the default language entirely in cases with only a cease and desist remedy. The memorandum also clarifies that default judgment is not an immediate remedy, a point of some confusion among the Regions. Instead, Regions will now only seek a default judgment in a prior, settled case if and when an ALJ finds after a hearing in a new case that a respondent has engaged in conduct covered by that prior settlement. The memorandum also emphasizes that Regional Directors can place both geographic and six-month temporal limitations on any default judgment language in settlement agreements. The ability to eliminate default judgment language should again make settlement more attractive where the NLRB only seeks to have an employer cease certain conduct and post a notice. Even where a Region insists on default judgment language, employers now have some greater certainty about their rights and ability to seek reasonable limitations in any settlement agreement.
