Hunton Employment & Labor Perspectives

The National Labor Relations Board (NLRB) and the Department of Justice (DOJ) recently announced a new partnership, which, in their words, will “better protect free and fair labor markets and ensure that workers can freely exercise their rights under the National Labor Relations Act.”  Through a memorandum of understanding (MOU), the agencies have agreed to collaborate with the stated aim of advancing workers’ rights to obtain fair market compensation and to freely exercise their legal rights under labor laws.

Through this partnership, the NLRB and DOJ intend to focus on the following priorities:

• Protecting workers who have been harmed or may be at risk of being harmed as a result of conduct designed to evade legal obligation and accountability (such as misclassifying employees or fissuring workplaces);
• The interference with the rights of workers to obtain fair market compensation and collectively bargain (through labor market concentration/labor monopsony or other anticompetitive practices); and
• The imposition of restrictive agreements or workplace rules, such as noncompete, nonsolicitation, and nondisclosure provisions.

The Agencies intend to partner and collaborate on these issues by:

• Designating Liaisons. Each agency will designate one or more Agency Liaisons who will regularly meet, at least quarterly, to discuss topics of interest and establish procedures for coordination of efforts related to such topics.  Topics may include, but are not limited to: interagency collaboration, coordination of investigatory and enforcement resources, access to and exchange of information, training programs, public outreach, and technical assistance.
• Sharing Information.  To the extent permitted by law, each Agency may share with one another information, including complaints, investigative files, reports or analyses prepared by either Agency, or data procured by either Agency, and provide technical assistance (including guidance on policy and enforcement matters).   The MOU also requires that non-public information that is shared must be kept confidential. It also sets forth procedures for the handling of such information and subpoenas for information.
• Training, Education, and Outreach.  The Agencies will provide training to each other’s staff in identifying cases and issues that may arise under the other Agency’s jurisdiction, engage in outreach and public education, share or co-develop training materials and programs, and develop joint policy statements and technical assistance documents to facilitate awareness of the laws.
• Consulting and Coordinating Their Enforcement Programs.  The Agencies will consult and coordinate with one another with respect to their investigative and enforcement activities. Staff may periodically consult on specific complaints or unfair labor practice charges, including reviewing information obtained during the course of investigation or coordinating requests for information. Staff may also exchange information about general patterns of conduct that may be anticompetitive or otherwise harm consumers, workers, or others.
• Referring Matters.  When the NLRB detects potential antitrust violations, it will refer the matter to the Antitrust Division as appropriate. When the Antitrust Division detects potential labor law violations, it will provide affected employees with informational materials and contact information for the NLRB.

The announcement of the NLRB and DOJ partnership follows the recent announcement of a similar partnership between the NLRB and the Federal Trade Commission (FTC) and follows the NLRB’s trend of seeking to strengthen inter-agency coordination. While it is unclear how these partnerships will function in practice, businesses should be mindful of the potential for information sharing between agencies and the potential for increased enforcement efforts.  Our labor law attorneys are experienced in assisting companies when responding to such efforts.