On March 7, 2023, the Nationwide Labor Relations Board (NLRB) and the Shopper Monetary Safety Bureau (CFPB) signed a Memorandum of Understanding (“CFPB MOU”) that created a proper partnership between the 2 companies. Per the CFPB MOU, the idea for this collaboration is a shared curiosity in “defending American customers and employees” to “higher root out monetary practices that hurt employees,” to “improve the enforcement of federal legal guidelines,” and to coordinate interagency targets, outreach and coaching. Based on the NLRB, the focused practices are “employer surveillance, monitoring, knowledge assortment, and employer-driven debt,” which might embrace employee-purchased gear, provides or required coaching. The CFPB’s focus is on practices within the “gig financial system” and though “employer surveillance and employer-driven debt” are areas of “rapid concern,” the CFPB’s particular concern is directed to firms which will violate the Honest Credit score Reporting Act by promoting employee surveillance knowledge and that as to employer-driven debt, the required purchases is probably not competitively priced and/or might topic the worker to debt assortment efforts.
At its core, the CFPB MOU’s goal is to “share data and protect the confidentiality of that data to serve the aims of this [CFPB] MOU.” (CFPB MOU, §II.) Notably, the CFPB MOU offers that all shared data – whether or not oral, written, or digital – constitutes “nonpublic data” that’s thought-about confidential and never topic to disclosure except the get together offering the data “expressly consents or designates the data as publicly out there.”[1] (CFPB MOU, §III.) Thus, each the data sought in addition to the data supplied by both company are shielded from the employers’ view.
Though the CFPB MOU doesn’t create new obligations (MOU, §VI), it doubtlessly will increase threat and legal responsibility for employers, not solely due to this confidential data sharing, however as a result of it’s the fifth interagency collaboration the NLRB has established since formalizing its initiative on February 10, 2022, in Memorandum GC 22-03, mentioned right here.
The NLRB has entered into an unprecedented 5 MOUs with different federal companies since Jennifer Abruzzo’s appointment as NLRB Common Counsel (“GC”) on July 22, 2021. Simply 4 months into her appointment, the NLRB entered into an MOU on November 29, 2021 with the Workplace of Labor Administration Requirements (OLMS) to share investigatory data and a second MOU on December 8, with the Division of Labor Wage and Hour Division to share data, together with investigation information and grievance referrals, in help of each companies’ enforcement mandates. In July 2022, a 3rd MOU was entered into with the Federal Commerce Fee to “root out practices that hurt employees within the ‘gig financial system,’” and a fourth MOU was entered into with the Division of Justice Antitrust Division. Distinction this exercise with the prior GC who entered into simply two MOUs throughout their tenure from November 17, 2017 to January 20, 2021. Notably, solely one of those MOUs underneath the prior GC referenced sharing data and even then solely contemplated a “formal data sharing settlement at a future date.”[2]
As a sensible matter, the NLRB’s elevated deal with interagency collaboration and confidential data sharing might end in employers doubtlessly discovering themselves underneath investigation from a number of companies based mostly on the identical office motion or apply. Even when the investigating company doesn’t have enforcement authority, these a number of MOUs might permit the matter to be readily referred to an company with enforcement authority.
For the CFPB MOU, the focused practices are ones which might be ruled by quite a lot of legal guidelines, together with federal regulation (Honest Labor Requirements Act, Occupational Well being and Security Act, Honest Credit score Reporting Act) and California regulation (Wage legal guidelines and Wage Orders, Cal/OSHA, and the California Privateness Rights Act of 2020), and employers ought to already be in compliance with these guidelines. Nonetheless, employers ought to rigorously assessment their insurance policies and practices to make sure they adjust to relevant federal and state regulation with respect to: worker monitoring; office monitoring or surveillance applications or instruments; retention, use, and safety of any worker knowledge collected, together with knowledge generated by any such applications or instruments; any required worker purchases; employee-provided gear or instruments; and fee for any required worker coaching.
FOOTNOTES
[1] The MOU excludes data supplied to the CFPB pursuant to 12 C.F.R. §1082.1 et seq. (referring to enforcement of the Dodd-Frank Wall Avenue Reform and Shopper Monetary Safety Act of 2010).
[2] The opposite MOU between the US Postal Service, the Workplace of Employee Compensation Applications, and the NLRB involved to the discharge of employees’ compensation data.
