On July 8, 2013, the U.S. Department of Justice’s Office of Special Counsel for the Immigration-Related Unfair Employment Practices (“DOJ”) announced (http://www.justice.gov/opa/pr/2013/July/13-crt-762.html) that it entered into a memorandum of understanding (link to NLRB OSC MOU ) with the National Labor Relations Board (“NLRB”), “that allows both agencies to share information, refer matters to each other and coordinate investigations as appropriate.”
This new MOU allows the NLRB to make referrals to the DOJ when a matter before the NLRB suggests a possible violation of the anti-discrimination laws that the DOJ enforces, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin. Conversely, the DOJ will refer matters to the NLRB, “that appear to fall within that agency’s authority, such as infringement on the right to form, join, decertify or assist a labor organization, and to bargain collectively through representatives of their own choosing or to refrain from such activities.” The MOU also calls for cross-training of staff members to aid in the identification of cases that are ripe for referral and to “assist each party to better understand the policies, procedures, and law governing the enforcement activities of the other party.” When appropriate, the MOU permits parallel investigations by the DOJ and NLRB.
In announcing this partnership, Gregory Friel, Deputy Assistant Attorney General for the DOJ’s Civil Rights Division remarked that, “Employers cannot avoid liability under the law just because an employee has turned to the wrong agency or is unaware of additional protections available under a different law. Employees deserve to benefit from the efficiency of government cooperation, and employers will continue to benefit from agency guidance on how to comply with the anti-discrimination provision and the National Labor Relations Act.”
MOU’s such as this one between governmental agencies are not all that uncommon. However, what readers of Seyfarth’s Employer Labor Relations blog should take away from this MOU is that the NLRB, despite several high-profile legal defeats discussed here (http://www.employerlaborrelations.com/2012/04/15/court-finds-nlra-rights-poster-invalid/) and here (http://www.employerlaborrelations.com/2013/06/16/second-appellate-court-strikes-down-nlrbs-posting-requirement/) concerning previous efforts to increase its profile among workers (e.g. the now twice rejected workplace notice posting requirement) is continuing to press forward with the Obama’s Administration’s commitment to organized labor through stepped up enforcement of the NLRA.