WHD and EEOC Memorialize Intent to Cooperate and Coordinate with Each Other’s Investigation and Enforcement Efforts

Rob Thomas, Of Counsel

   Generally speaking, when an agency like the Equal Employment Opportunity Commission (“EEOC”) investigates a charge, its investigation may expand beyond the allegations in the charge to include other potential violations of federal anti-discrimination laws, but its investigation is nonetheless bound by its own jurisdictional limitations.  However, in a joint Memorandum of Understanding (“MOU”),[1] signed on September 13, 2023, the EEOC and the Department of Labor’s Wage and Hour Division (“WHD”) have now indicated that they will proactively assist each other to report and investigate violations of federal laws that would otherwise fall under each agency’s own sphere of influence. 

 The MOU – Purposes, Goals, and Areas of Cooperation

   While the EEOC is generally responsible for the enforcement of federal anti-discrimination laws (Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, etc.), the WHD is primarily responsible for enforcement of federal wage and hour laws, including the Fair Labor Standards Act and the Family and Medical Leave Act.  Nonetheless, via the MOU, both agencies have recognized that increased efforts to share information, coordinate investigations, and engage in mutual training and outreach may result in improvements with both agencies’ goals to enforce federal law in the workplace. 

  The first key area of coordination relates to exchanges of information in cases of “common legal interest.”  Under the MOU, either agency may share upon request or at their own initiative any information or data supporting the other’s enforcement efforts—including information obtained in the course of an investigation.  Such information can include information or data provided by employers in response to charge allegations.  By way of example, if an employer receives a charge of discrimination from the EEOC and, as one of its defenses, the employer asserts that the charging party is actually an independent contractor and not an employee under federal anti-discrimination laws, the EEOC could share such information with the WHD if it has reason to believe that the charging party has also been misclassified as an independent contractor for wage and hour purposes. 

  Apart from information-sharing between the agencies, the MOU also contemplates coordinated investigation and enforcement efforts.  Most notably, and using the above example, the MOU provides that if the EEOC has reason to believe that the employer has also committed wage and hour violations by misclassifying the charging party as an independent contractor, it will not only share this information with the WHD, but will also inform the charging party of the issue and provide information as to how the charging party may vindicate its rights with the WHD.  The MOU also provides that the agencies may jointly work together to coordinate their respective investigations or, when appropriate, agree to hold one investigation in abeyance while the other agency attempts to settle or conciliate the matter under its own statutory and regulatory framework. 

  As part of this information-sharing and enforcement initiative, both agencies have agreed that they will provide training to each other’s staff when deemed appropriate to identify cases and issues that may arise under the other’s jurisdiction.  Likewise, the agencies have agreed to work together in public outreach efforts, co-develop training materials and programs, or develop joint policy statements and technical guidance as needed. 

Employer Considerations

  While the MOU expressly notes that it is not a legally-binding or enforceable agreement, employers should understand that any complaint of discrimination or violations of wage and hour laws may not stay so limited, and could expand to a much broader (and costly) investigation of the employer’s overall practices in the workplace—with not one, but two, federal agencies driving the investigation.  Given that both federal anti-discrimination laws and wage and hour laws carry significant penalties for noncompliance, employers should undertake a holistic review of their EEO and wage and hour practices to avoid such outcomes.

  As always, Campbell Litigation is available to assist employers with navigating federal EEO and wage and hour laws, and to help defend against charges of discrimination or wage and hour violations.

[1]See https://www.eeoc.gov/sites/default/files/2023-09/2023_NL01133MOU%20DOL%20WHD-SD-1_508.pdf.