NLRB and WHD sign historic memo, look to issue new regs

On January 6, 2022, the National Labor Relations Board (NLRB) and the U.S. Department of Labor’s Wage and Hour Division (WHD) issued a Memorandum of Understanding (MOU) that is emblematic of the increasing coordination among and between the federal workplace enforcement agencies in the Biden administration. The memo promises increased enforcement on key issues, such as worker misclassification (both independent contractor and joint-employment relationships) and retaliation.

Agencies’ plans

Complaint referrals. The NLRB and the WHD will establish a formal referral process, including advising workers of potential violations of laws enforced by the other agency and providing workers with both information about and a contact at the other agency.

Information sharing. The agencies are creating a system to exchange information and data between each other, including sharing confidential information and data not otherwise subject to production to the public, such as the identity of individuals providing information during an investigation; internal opinions, memoranda, and recommendations of investigators; information covered by attorney-client privilege or work product; protected personal information; and confidential business information and trade secrets.