On January 6, 2022, the U.S. Department of Labor's Wage and Hour Division (DOL/WHD) and the National Labor Relations Board (NLRB) announced a memorandum of understanding (MOU) between the agencies to share information, collaborate, and coordinate on investigations of potential violations of federal labor and employment laws. The MOU places particular emphasis on worker misclassification (both independent contractor and joint-employment relationships) and retaliation and represents the latest in the Biden administration's efforts to ramp up enforcement in these areas.

The MOU will take effect immediately, with the DOL/WHD announcing that it was reviewing cases currently under investigation that may have some overlap with the NLRB.

Based on the MOU unveiled today, employers may see the following:

Workers Referred Between DOL/WHD and NLRB

The agencies agreed to create 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.

DOL/WHD and NLRB Sharing Information and Data

The agencies agreed to create a system to exchange information and data across the two agencies. This includes 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, or recommendations of investigators; information covered...

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