On March 7, 2023, the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) signed a Memorandum of Understanding (“CFPB MOU”) that created a formal partnership between the two agencies. According to the CFPB MOU, the basis for this collaboration is a shared interest to “protect American consumers and workers” to “better eradicate financial practices that harm workers”, to “improve the enforcement of federal laws” and to coordinate interagency goals, outreach, and training. According to NLRB, practices targeted are “surveillance, monitoring, data collection, and employer debt,” which may include equipment purchased by employees, supplies, or necessary training. O CFPBThe company’s focus is on “gig economy” practices, and while “employer surveillance and employer-generated debt” are areas of “immediate concern”, the CFPB’s specific concern is directed at companies that may violate Fair Credit Reporting Act selling workers surveillance data and that, regarding employer debt, necessary purchases may not be competitively priced and/or may subject the employee to debt collection efforts.
In essence, the purpose of the CFPB MOU is “to share information and preserve the confidentiality of that information to meet the objectives of this (CFPB) MOU”. (CFPB MOU, §II.) Notably, the CFPB MOU provides that all Shared information – whether oral, written or electronic – constitutes “non-public information” that is considered confidential and not subject to disclosure unless the party providing the information “expressly consents or designates the information as publicly available”.(1) (CFPB MOU, §III.) Thus, both information requested and information provided by any agency is protected from the view of employers.
Even though the CFPB MOU does not create new obligations (MOU, §VI), it potentially increases risk and liability for employers, not only because of this sharing of confidential information, but because it is the fifth interagency collaboration that the NLRB has established since the formalization of its initiative of February 10, 2022, in Memorandum GC 22-03, discussed here.
The NLRB has entered into an unprecedented five MOUs with other federal agencies since the appointment of Jennifer Abruzzo as General Counsel of the NLRB (“GC”) on July 22, 2021. Just four months after her appointment, the NLRB entered into an MOU on November 29 2021 with the Office of Labor Management Standards (OLMS) to share investigation information and a second MOU on December 8, with the Department of Labor Wage and Hour Division to share information, including investigation files and complaint referrals, in support to the implementing mandates of both agencies. In July 2022, a third MOU was entered into with the Federal Trade Commission to “root out practices that harm workers in the ‘gig economy’” and a fourth MOU was entered into with the Antitrust Division of the Department of Justice. Compare this activity to the previous GC that signed only two MOUs during its term from November 17, 2017 to January 20, 2021. Notably, only one of these MOUs under the previous GC referenced information sharing and even then only contemplated a “formal information sharing agreement at a future date”.(two)
In practice, the NLRB’s increased focus on interagency collaboration and the sharing of confidential information could result in employers potentially finding themselves under investigation by multiple agencies based on the same action or practice in the workplace. Even if the investigating agency does not have enforcement authority, these multiple MOUs can allow the matter to be promptly referred to an agency with enforcement authority.
For the CFPB MOU, targeted practices are those governed by a variety of laws, including federal law (Fair Labor Standards Act, Occupational Health and Safety Act, Fair Credit Reporting Act) and California law (Wage Laws and Wage Orders, Cal/OSHA and the California Privacy Rights Act of 2020), and employers must already be in compliance with these rules. However, employers should carefully review their policies and practices to ensure they comply with applicable federal and state laws regarding: employee monitoring; workplace tracking or surveillance programs or tools; retention, use and protection of any employee data collected, including data generated by such programs or tools; any purchases required by employees; equipment or tools provided by the employee; and payment for any necessary training for employees.
(1) The MOU deletes information provided to the CFPB pursuant to 12 CFR §1082.1 and seq. (relating to the application of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010).
(two) The other MOU between the US Postal Service, the Office of Worker Compensation Programs and the NLRB concerned the release of workers’ compensation records.