As of September 13th, the Department of Labor’s Wage and Hour Division (DOL-WHD) is partnering with the Equal Employment Opportunity Commission (EEOC) to focus on “enhanced law enforcement” through information sharing, joint investigations, training, and outreach.

The Memorandum of Understanding (MOU) is considered voluntary and is not legally binding, but may have an impact on organizations nationwide.

In instances where there may be a “common legal interest,” the DOL-WHD and EEOC will share complaint referrals, investigative files, and other data, mirroring and formalizing similar arrangements among civil rights agencies.

What does this mean? If a complaint is filed by an employee to the DOL-WHD or to the EEOC, either agency can decide to refer the employee to the other agency to make additional complaints. Further, either agency can share the information directly with the other and combine their investigative efforts.

For example, when an employee files a discrimination claim under Title I of Americans with Disabilities Act (ADA) it would typically fall under the EEOC’s jurisdiction. However, if, in the course of its investigation, the EEOC suspects a potential violation of the employee’s right to medical leave under the Family Medical Leave Act (FMLA), the EEOC could either suggest that the complainant contact the DOL-WHD (who enforces the FMLA), or the EEOC could contact the DOL-WHD and alert the agency of the potential violation. At that point, the DOL may choose to investigate.

Under the MOU, the sharing of confidential information will comply with the 1974 Privacy Act. Information exchanged between the agencies will not be considered public disclosure under the Freedom of Information Act (FOIA). And, the MOU further assures that all information exchanged electronically will be secure.

The MOU promises that the agencies will only share information under the “common interest doctrine.” Importantly, this doctrine seeks to preserve privilege because information shared with a third party who has a common legal interest in the matter maintains the existing privilege and extends the privilege to the third party.

While assurances that information from complainants and investigations won’t be made public are encouraging, the fact that potential issues will be multiplied by inter-agency collaboration remains. The agencies plan to train one another to issue spot so that they can alert their counterparts.

Reach out to Jenna Brofsky, Courtney Steelman, Delia Berrigan, or your Husch Blackwell attorney to discuss how this may impact your organization or business.

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Photo of Jenna Brofsky Jenna Brofsky

Clients benefit from having Jenna on their team, whether they need routine labor and employment counseling or representation for complex litigation. Jenna frequently advises employers on compliance with federal and state employment laws, including Title VII of the Civil Rights Act, the Equal

Clients benefit from having Jenna on their team, whether they need routine labor and employment counseling or representation for complex litigation. Jenna frequently advises employers on compliance with federal and state employment laws, including Title VII of the Civil Rights Act, the Equal Pay Act and the Americans with Disabilities Act (ADA), as well as numerous wage payment statutes.

Photo of Courtney Steelman Courtney Steelman

Courtney focuses her practice on labor and employment law and business relations. She is a well-connected, reliable advisor who works closely with clients, key media resources, special interest groups and co-workers.

Photo of Delia Berrigan Delia Berrigan

Delia assists clients with labor and employment matters, especially when they intersect with intellectual property law.

Delia’s interest in law was first sparked by a publishing law course during her master’s program at New York University. Her interest continued to grow during her

Delia assists clients with labor and employment matters, especially when they intersect with intellectual property law.

Delia’s interest in law was first sparked by a publishing law course during her master’s program at New York University. Her interest continued to grow during her corporate career in the publishing industry, where she found herself drawn to the complexities of legal issues and the stories behind them. Her experience managing teams and negotiating publishing contracts has given her a unique perspective and a deep understanding of the importance of IP ownership in employment agreements.

Delia’s time in law school was marked by a strong focus on intellectual property and labor law, and she graduated with a special certification in IP law. She also found herself surprisingly drawn to oral arguments and litigation, leading her to participate in trial advocacy and deposition advocacy programs. Her independent study on labor law, where she examined current unionization strategies among large national corporations, further solidified her interest in the L&E field.

Now a fully qualified attorney, Delia provides representation during litigation as well as preventative counsel. She has a special interest in and passion for advising on diversity, equity, and inclusion principles, and she brings a unique blend of experiences from working in small businesses, franchises, and large corporations.

Known as a strategic problem-solver, Delia is adept at understanding the context of issues, synthesizing insights, and developing creative solutions to complex problems.