Seyfarth Synopsis: On February 24, 2022, the National Labor Relations Board, Equal Employment Opportunity Commission, and Department of Labor hosted a webinar identifying their intent to ramp up prosecution of employers. The federal agencies are working together to specifically target employer retaliation against employees in an effort to address racial and economic injustice. Referring to labor issues as a “civil rights issue,” and a “human rights issue,” the agency leaders described the tools they are utilizing — such as early injunctive relief, cross-agency training, and resource sharing — to incentivize workers to speak out about employer misconduct. Employers should be prepared to face fast and forceful scrutiny of any alleged misconduct.
The National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the Department of Labor (DOL) have joined forces in an effort to target workplace retaliation. This multi-agency initiative was launched in November 2021 to build on memoranda of understanding (MOUs) that allow these federal agencies to coordinate investigations and litigation, reduce resource expenditures, and jointly pursue remedial relief. Before the initiative, MOUs existed between the DOL and EEOC and between the NLRB and EEOC. On January 6, 2022, the DOL’s Wage and Hour Division and the NLRB also announced an MOU. The three agencies held a virtual discussion on February 24, 2022, to inform the public of joint efforts to ramp up enforcement.
During the discussion, several of the agency leaders argued that, in their view, when one worker protection statute has been violated, it is likely that other worker protection statutes have been violated as well. For example, while a wage theft case is often categorized as strictly a wage and hour issue, it may also implicate Title VII if workers were denied wages because of their national origin. DOL Solicitor Seema Nanda emphasized the agencies’ efforts to act as “one government,” utilizing cross training, joint settlements, and information sharing between agencies. EEOC Regional Attorney Mary O’Neill added that the EEOC is “very interested” in cases that present multi-agency issues.
Retaliation is a Key Enforcement Priority
The priority of the multi-agency initiative is to address the impact that workplace retaliation has on workers in low income and diverse populations. Charlotte Burrows, EEOC Chair, shared her view that retaliation has a greater impact on workers of color, and discussed the “deep inequality” that was exposed by the death of George Floyd and the COVID-19 pandemic. The agencies decided to focus their efforts in this area because of their concern that workplace retaliation often deters vulnerable workers from coming forward. O’Neil pointed out that employees who experience workplace retaliation and lose their jobs may suffer other consequences, such as trouble feeding their families. Throughout the webinar, the agency leaders were emphatic that these are civil rights issues, not just labor issues.
While the agencies are aiming to broadly address racial and economic injustice, they focused a substantial portion of their discussion on protection of immigrant workers specifically. The agencies have a close eye on industries that often employ high percentages of immigrant workers, such as agriculture, garment, hospitality, casino, and care facility workers. The agency leaders gave examples of cases in which employers retaliated against workers by threatening their immigration status. Nanda argued that the agencies can only be effective when workers feel safe speaking out.
Worker Protection Strategies and Enforcement Tools
The agency leaders discussed the various ways that they are addressing workplace retaliation using individualized and coordinated efforts.
The DOL’s Wage and Hour Division indicated that it is vigorously responding to both subtle and overt retaliation. Fisher discussed the success she has had in the last year using temporary restraining orders and preliminary injunctions as primary tools to stop employer retaliation “early and often.”
The NLRB representatives described the work the agency has been doing to protect workers of color. NLRB General Counsel Jennifer Abruzzo stated “I believe that racial and economic justice advocacy, where there is a direct link to the workplace, is protected….” She said that if workers are retaliated against for coming together to raise bias issues in the workplace, “we are going to prosecute.” She stated that the NLRB has already issued a number of complaints in this area since she was named General Counsel and intends to continue doing so.
NLRB Regional Director Lisa Henderson highlighted an NLRB General Counsel Memo published in November 2021, which lays out the NLRB’s policies and procedures for protecting immigrant workers who file charges or act as witnesses in NLRB proceedings. The NLRB is committed to pursuing U and T visa petitions for workers who come forward. The DOL also protects worker witnesses and gives them incentives to speak with investigators. DOL Regional Solicitor Maia Fisher added that it is “standard practice” for the DOL to seek injunctive relief when employers threaten their employees’ work authorization status, saying “we do not tolerate that.”
O’Neil described the EEOC’s efforts to educate workers about their rights, for example, by building relationships with nonprofits and community groups. The agency leaders also suggested that they “meet people where they are,” by speaking in the workers’ native languages and using social media and other websites that workers typically use when sharing information.
In her closing remarks, Abruzzo encouraged workers to exercise their right to “band together,” further stating, “We are here to help you, educate you, and remedy violations of your rights…I hope this webinar empowers you to raise your voices.”
Employers should be aware that federal worker protection agencies are taking an active stance against workplace retaliation and incentivizing workers to speak out against their employers. Increased litigation can be expected as these agencies continue to prioritize and coordinate enforcement efforts in this area. Employers should also be prepared to face requests for injunctive relief and expanded remedies for alleged violations of worker protection laws.
As these federal agencies move forward with this racial and economic justice initiative, companies should reach out to their Seyfarth contact for recommendations on preventing or addressing retaliation and other workplace misconduct. Please contact your Seyfarth attorney or one of the authors if you have questions regarding the initiative.