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.