Left Hand, Meet Right Hand: Federal Agencies to Combine Forces Against Employers

Over the past couple years, federal agencies have announced new initiatives to increase communications with other federal agencies. The left hand is being introduced to the right hand more than ever, and employers should take note. With increased communication, employers who are found by one federal agency to have violated the law may be subject to additional scrutiny by other federal agencies.

The most recent announcement comes from the Office of Federal Contractor Compliance Programs (OFCCP), a division of the Department of Labor that enforces the affirmative action regulations applicable to employers who are covered federal contractors or subcontractors. In a recent webinar, the OFCCP explained that, during audits of a covered employer's compliance with affirmative action regulations, it will review the employer's compliance history for the last three years with sister agencies, including the Wage and Hour Division, the Veterans' Employment and Training Service, and the Occupational Safety and Health Administration. The review of records from other agencies is a part of the OFCCP's new active case enforcement (ACE) directive. Under this directive, the OFCCP will view an employer's non-compliance with other federal laws to be an indicator of possible non-compliance with the laws and regulations it enforces. Such indicators could trigger a more extensive review of the employer's practices by the OFCCP.

While the OFCCP does not have enforcement authority over all employers, the OFCCP is not the only agency to make such an announcement in the past couple years. For example, as part of a multi-agency "Misclassification Initiative," the Wage and Hour Division of the Department of Labor has been working with other federal agencies, including the Internal Revenue Service (IRS), to address violations that result from an employer's misclassification of an employee as an independent contractor. With this increase communication and cooperation between the left hand and the right hand of the federal government, it is more important than ever that employers confirm their compliance with the various applicable employment laws and regulations and make any necessary corrections before one federal agency knocks on the door, potentially inviting in other federal agencies.

If you have questions about these or any other employment-related matters, please contact Tami A. Earnhart or any other member of our Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

May 25, 2011