If the DOL Doesn't Get You, the NLRB Will
The U.S. Department of Labor Wage and Hour Division and the National Labor Relations Board recently entered into a Memorandum of Understanding that does not bode well for employers. Under this Memorandum, the DOL and NLRB will share with each other any information and data that they discover during an investigation that they believe may show a violation of a law enforced by the other entity. For example, if an employee tells a DOL investigator that the employer’s “publicity policy” forbids employees from speaking ill of the employer on social media, the DOL investigator will refer the information to the NLRB for investigation as potential a Section 7 violation.
The Memorandum goes even further: it also provides that when one agency “has reason to believe that there may be unlawful conduct that falls within the jurisdiction of the [other agency],” it will “advise the complainant/employee(s) that an opportunity may exist to file a charge with the [other agency].”
So, not only will one agency tell the other that it needs to investigate you, but it will also tell the complainant that he should file another charge against you.
To better enforce this commitment, the DOL recently announced that it is hiring over 100 new investigators.
This is all a part of President Biden’s stated pro-labor/pro-union mandate. If you are not sure if your policies and practices are in compliance with the NLRA and the FLSA, now is the time to make sure that they are and to implement any needed changes. Don’t wait until the DOL or NLRB are knocking on your door.