You're NOT Paranoid – the Agencies ARE Ganging Up

18 August 2014 Labor & Employment Law Perspectives Blog

Feeling a bit paranoid these days, especially where government oversight or agency investigations are involved? Your perception of reality is probably being driven less by paranoia and more by the upticks in government activity, and that twitchy sense of more government scrutiny is actually well justified. In addition to executive agency actions placing more requirements on contractors, government agencies are practicing sharing and cooperation – and in ways that may not have quite the positive results you might normally expect.

In the most recent example, the National Labor Relations Board (“NLRB”) is essentially coaching its staff to be on the look for violations of other laws. In a formal memorandum issued August 8, 2014, the Associate General Counsel suggested that investigations of NLRB charges may also reveal facts that indicate possible violations of other laws, especially the Fair Labor Standards Act (“FLSA”) or Occupational Safety and Health Act (“OSHA”). The memo suggests that the investigator may run across information that would indicate concerns about unsafe work conditions, record keeping, child labor, or failure to properly pay minimum wage or overtime. In addition, the memo highlighted that investigators should be sensitive to information indicating that retaliation might have occurred in response to someone reporting a perceived violation of either OSHA or FLSA.

The NLRB has directed its staff to notify the “charging party that he or she (or their representative) has the right to file a complaint” with the responsible agency. And, if the NLRB learns of a “parallel” investigation, it should coordinate the investigation with the appropriate part of the Department of Labor. The NLRB did have one caution for its staff – noting that its personnel are not expected to be experts with regards to either FLSA or OSHA. Fear not, the Board decided – and proceeded to provide information about how its personnel could access the quick reference guides on the websites of other federal agencies.

Earlier, NLRB had made a point to let OSHA know that people who sought to file retaliation charges, but were out of time under OSHA, might still have time to file charges with the NLRB. And, as another example of why your concerns about increasing government scrutiny may be justified, the OFCCP has proposed a rule that would collect summary pay data from federal contractors – of course, this comes on the heels of the “Fair Pay and Safe Workplaces Executive Order.”

Let the “paranoia” continue…

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