Hunton Retail Law Resource

Across the country, it seems there is a renewed interest in organized labor and workers’ wages, both from the public generally and the federal government.  As it always has been, the retail space remains a likely proving ground for union activity and agency enforcement.

The Department of Labor Wage and Hour Division and the National Labor Relations Board released a Memo of Understanding announcing that the two agencies will be collaborating “to strengthen the agencies’ partnership through greater coordination in information sharing, joint investigations and enforcement activity, training, education, and outreach.” The MOU took effect upon both agencies’ approval in early December and will remain in effect for five years.

The MOU states that the DOL and NLRB “may share, whether upon request or upon an agency’s own initiative, any information or data that supports each agency’s enforcement mandates, whether obtained in the course of an investigation or through any other sources to the extent permitted by law.” The MOU further 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].” The MOU also specifically provides for “coordinated investigations of matters arising within both agencies’ jurisdictions.” Practically speaking, this means that employers involved in a proceeding before the DOL, for example, could face a “dual threat” over the same set of circumstances from the DOL and NLRB, if the agencies find grounds for doing so.

The DOL also recently announced that it will be hiring 100 new investigators in the coming weeks to boost enforcement efforts.  The DOL’s hiring surge, as well as the partnership between the DOL and NLRB, are part of a broader push to promote President Biden’s pro-labor mandate.  President Biden began taking action on this mandate immediately upon entering office, terminating the previous NLRB General Counsel and Trump appointee, Peter Robb, in January 2020, with nearly 10 months remaining in his four-year term.  President Biden nominated—and the Senate confirmed—Jennifer Abruzzo as Robb’s replacement.  Abruzzo began serving in July 2021.

The result of the DOL and NLRB’s partnership, as well as President Biden’s pro-labor mandate generally, remain to be seen.  One potential impact could be increased liability.  Wage and Hour audits may now come with the additional risk factor of an unfair labor practice charge or a union campaign could produce an investigation or lawsuit for employee misclassification.  The retail space has experienced a recent increase in labor activity and seems like a logical place for the pro-labor push to have its most immediate impact.  For now, at a minimum, employers can expect renewed interest from both the DOL and the NLRB in investigation and enforcement activity.