NLRB and FTC Will Cooperate to Advance Workers’ Rights

Allen Smith, J.D. By Allen Smith, J.D. July 28, 2022
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A worker sawing a piece of wood

​National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo and Federal Trade Commission (FTC) Chair Lina Khan entered a memorandum of understanding on July 19 to form a partnership between the agencies that will advance workers' rights. We've gathered articles on the news from SHRM Online and other outlets.

Agreement's Objectives

The agreement enables the NLRB and the FTC to collaborate by sharing information, cross-training staff and partnering on investigative efforts within each agency's authority. Areas of mutual interest for the two agencies include labor market developments relating to the gig economy, such as misclassification of workers; the imposition of one-sided and restrictive contract provisions, such as noncompete and nondisclosure provisions; and the ability of workers to act collectively.

(NLRB)

Memorandum's Effect on Merger Review Process

The FTC now can share with the NLRB some of the information it obtains from companies in the merger review process. The NLRB then could review the documents—which it otherwise would not have access to—for evidence of National Labor Relations Act (NLRA) violations like union busting, said Hiba Hafiz, a professor at Boston College Law School.

(Bloomberg Law)

FTC's Possible Regulation of Noncompete Agreements

Khan recently told The Wall Street Journal that regulating noncompete agreements "falls squarely in [the FTC's] wheelhouse." She has shared her view that noncompetes should be banned nationwide and that the FTC has the authority to do so. If the FTC takes steps to ban or otherwise limit noncompetes under the FTC Act, there likely will be litigation challenging such regulations.

(The National Law Review)

Broader FTC Initiative

The FTC said its agreement with the NLRB "is part of a broader FTC initiative to use the agency's full authority, including enforcement actions and commission rulemaking, to protect workers." The agency previously announced it is factoring additional facets of competition into its merger reviews, including how a proposed merger is affecting labor markets. The FTC's initiative is part of a broader Biden administration effort to prioritize antitrust enforcement in labor markets. 

(Wilson Sonsini)

NLRB Collaborating with DOL

Earlier this year, the NLRB announced that it was collaborating with the U.S. Department of Labor's (DOL's) Wage and Hour Division to improve enforcement of the laws administered by each agency. The Wage and Hour Division enforces the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act. The NLRB administers the NLRA.

"This is a coordinated leap by the administration to not only more aggressively enforce the FLSA and NLRA, but to pursue each agency's effort to expand the scope of who's a joint employer and narrow the scope of who's an independent contractor," said Rob Boonin, an attorney with Dykema in Ann Arbor, Mich.

(SHRM Online)

NLRB Now Working with DOJ

The NLRB and the U.S. Department of Justice (DOJ) also have announced a partnership to protect workers. Their collaboration will focus on protecting workers harmed by employee misclassification; interference with the rights of workers to obtain fair market compensation and collectively bargain; and the imposition of restrictive agreements, such as noncompete, nonsolicitation and nondisclosure provisions.

(NLRB)

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