I have written about the collaborative arrangements, information sharing arrangements, that the USDOL has entered into with state DOLs and how that is a dangerous portent for employers. Well, the landscape has again changed on this front, foreboding more potential problems for the business community. On September 13, 2023, the USDOL and the Equal Employment Opportunity Commission (EEOC) entered into a Memorandum of Understanding (MOU) to join forces in advancing laws that facilitate equal employment opportunities and ensuring that employees are paid fairly. There are several fronts on which these efforts will be directed.
First, and importantly, the MOU provides for information sharing a number of issues, such as equal pay and anti-discrimination statutes. The agencies may now share any information or data that the particular agency secures during its investigations to the other. The types of information include complaints, other referrals and information contained in the investigative files emanating from these complaints that pertain to violations of either statute. The information also includes reports filed by employers, such as the EEO-1 Reports or FLSA records, such as time and payroll records. The agencies will also share analyses or summaries of these reports and data.
Further, the cooperation will also be evidenced in joint or overlapping investigations. If either agency believes that laws which the other agency enforces have been broken, that agency will advise the worker or complaining party that he/she can file a complaint with the other agency. The agencies have also pledged to, when appropriate, coordinate investigations of complaints or issues that fall with the purviews of both agencies.
Another interesting point is that the agencies will decide which one will stand back and which will go forward when they each find violations of their respective statutes. They will decide which case(s) are more appropriate to move forward with given the circumstances involved, an attempt to use resources efficiently. The MOU also allows for joint trainings and the promulgation of joint policy issuances and guidance.
This newest collaboration is a sign of the times. It is also a warning to employers that attacks against them can and will come on several fronts. I am seeing these mutual cooperation agreements between state and federal DOLs become almost commonplace, but this new wrinkle demonstrates the awareness of disparate agencies that such efforts might yield additional results.