On September 14, 2023, the Equal Employment Opportunity Commission (“EEOC”) and the Department of Labor Wage Hour Division (“WHD”) announced that they entered into a Memorandum of Understanding (“MOU”), which enables information sharing, joint investigations, training, and outreach. The MOU covers a broad range of activities and touches on all aspects of EEOC and WHD jurisdiction, including the newly enacted Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act.
The WHD and EEOC can now share any information or data obtained during an investigation that supports the agencies’ enforcement activities to the extent permitted by law. For example, the MOU states that each agency will make complaint referrals to the other, and that the two will share complaint or investigative files, EEO-1 reports and FLSA records, and “statistical analyses or summaries,” and that the agencies “will explore ways to efficiently facilitate” the sharing of information. This means that front-line EEOC staff involved in enforcement and litigation can now quickly access a wide range of information previously only held by WHD.
Of significant importance to employers, the MOU specifically contemplates that the EEOC may share employer EEO-1 reports with WHD. Title VII prohibits the EEOC from disclosing EEO report data to the public, but the MOU does not bind the WHD in the same way. Instead, the WHD agrees to “observe” Title VII’s confidentiality requirements.
Further, if the WHD or EEOC personnel discover conduct in an investigation that it believes to be unlawful, the investigating agency will advise the filing party or potential complainant that they can file a charge or complaint with the other agency. Where appropriate, the WHD and EEOC will conduct coordinated investigations of matters that arise within both agencies’ jurisdictions.
Employers can expect the MOU to lead to more information sharing between the EEOC and WHD when it comes to individual charges and investigations. The ability to gather additional data through this partnership with the WHD adds another powerful tool to the EEOC’s investigative powers. Employers should ensure that company policies and practices comply with federal employment laws administered by the EEOC and WHD, because an investigation by one could lead to the other agency finding (or at least alleging) additional violations.