Memorandum of Understanding

Memorandum of Understanding(PDF)

This Agreement is made and entered into by and between The United States Department of Labor’s Wage and Hour Division (hereinafter referred to as “WHD” or “Department”) and the Colorado Department of Labor And Employment (hereinafter referred to as CDLE), who may collectively be called the “Parties” or “Agencies” and individually a “Party” or “Agency.”

With the specific and mutual goals of providing clear, accurate, and easy-to-access outreach to employers, employees, and other stakeholders, and of sharing resources and enhancing enforcement by conducting coordinated investigations and sharing information consistent with applicable law, the Parties agree to enter into this partnership.

THEREFORE, IT IS MUTUALLY AGREED THAT:

Purpose

The Agencies recognize the value of establishing a collaborative relationship to promote compliance with laws of common concern in the State of Colorado. The Agencies are forming this partnership to more effectively and efficiently communicate and cooperate on areas of common interest, including sharing training materials, providing employers and employees with compliance assistance information, conducting coordinated investigations, and sharing information as appropriate.

This Agreement is intended to memorialize this understanding between WHD and CDLE. This Agreement is a voluntary agreement that expresses the good-faith intentions of WHD and CDLE, is not intended to be legally binding, does not create any contractual obligations, and is not enforceable by any Party. This Agreement does not obligate and will not result in an exchange of funds, personnel, property, services, or any kind of financial commitment. This Agreement outlines procedures to be followed by both WHD and CDLE in working together to address the need for information sharing, coordinated investigations, cross training staff, and outreach between WHD and CDLE.

Agency Responsibilities

WHD is responsible for administering and enforcing a wide range of labor laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, the Migrant and Seasonal Agricultural Worker Protection Act, worker protections provided in several temporary visa programs, and the prevailing wage requirements of the Davis-Bacon and Related Acts and the Service Contract Act. WHD enters into this agreement under the authority provided by 29 U.S.C. § 211(b), which authorizes WHD to cooperate with state agencies charged with the administration of state labor laws. Nothing in this Agreement limits WHD’s enforcement of these and other statutes.

CDLE is responsible for administering and enforcing within Colorado the Workers' Compensation Act, the Colorado Employment Security Act, and laws and regulations governing wages and employment eligibility.

Contacts

• The Agencies will designate a contact person responsible for coordinating the partnership activities. The Agencies will notify each other in the event of the separation or long-term absence of their contact persons.
• The Agencies will designate a representative to meet annually to review areas of mutual concern and the terms and conditions of the partnership.

Enforcement

Where appropriate and to the extent allowable under law,

1. The Agencies may conduct coordinated investigations periodically in the State of Colorado, if opportunity provides.
2. The Agencies may coordinate their respective enforcement activities and assist each other with enforcement.
3. The Agencies may make referrals of potential violations of each other’s statutes.

Effect of Agreement

1. This Agreement does not authorize the expenditure or reimbursement of any funds. Nothing in this Agreement obligates the Parties to expend appropriations or enter into any contract or other obligation.
2. By entering into this partnership, the Agencies do not imply an endorsement or promotion by either Party of the policies, programs, or services of the other.
3. Nothing in this Agreement is intended to diminish or otherwise affect the authority of either Party to implement its respective statutory functions.
4. This Agreement contains all the terms and conditions agreed upon by the Parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or be binding upon the Parties. This Agreement is not intended to confer any right upon any private person or other third party.
5. Nothing in this Agreement will be interpreted as limiting, superseding, or otherwise affecting the Parties’ normal operations. This Agreement also does not limit or restrict the Parties from participating in similar activities or arrangement with other entities.
6. This Agreement will be executed in full compliance with the Privacy Act of 1974, the Freedom of Information Act, the Federal Records Act, and any other applicable federal and any other applicable federal and Colorado State laws.

Exchange of Information

7. It is the policy of WHD and CDLE to cooperate with other government agencies to the fullest extent possible under the law, subject to the general limitation that any such cooperation must be consistent with the WHD’s and CDLE’s own statutory obligations and enforcement efforts. It is WHD’s and CDLE’s view that an exchange of information in cases in which both entities are proceeding on basically the same matter is to our mutual benefit. There is a need for WHD and CDLE to provide information to other law enforcement bodies without waiving the privilege of otherwise protected material or making a public disclosure.
8. Exchange of such information pursuant to this Agreement is not a public disclosure under the Freedom of Information Act, 5 U.S.C. 552.
9. Confidential information means information that may be exempt from disclosure to the public or other unauthorized persons under state and federal statutes. Confidential information includes: the identities of persons who have given information to the parties in confidence or under circumstances in which confidentiality can be implied; any employee statements in WHD’s enforcement files that were obtained under these conditions; internal opinions and recommendations of federal or state personnel, including (but not limited to) investigators and supervisors; information or records covered by the attorney-client privilege and the attorney work-product privilege; personal information on living persons; individually identifiable health information; and confidential business information and trade secrets.
10. Confidential Unemployment Compensation (UC) information, as defined in 20 CFR 603.2(b), means any unemployment compensation information, as defined in 20 CFR 603.2(j), required to be kept confidential under 20 CFR 603.4 or its successor law or regulation.
11. When confidential information is exchanged it shall be used and accessed only for the limited purposes of carrying out activities pursuant to this Agreement as described herein. The information shall not be duplicated or disclosed without the express written permission of the Agency providing the information (hereinafter the “Donor Agency”), a court order or as required by law, including the Freedom of Information Act. Upon receipt of a public disclosure request, CDLE agrees to provide WHD with notice of the request and an opportunity to pursue legal action to prevent the release of information.
12. Should either Party receive a request or subpoena that would, fairly construed, seek production of privileged information that it received pursuant to this agreement, the Party receiving such a request or subpoena shall take reasonable measures, including but not limited to asserting the common interest privilege, to preclude or restrict the production of such information for ten (10) business days, and shall promptly notify the Donor Agency that such a request or subpoena has been received, so that the Donor Agency may file any appropriate objections or motions, or take any other appropriate steps, to preclude or condition the production of such information.
13. Neither Party shall have authority to waive any applicable privilege or doctrine on behalf of the other Party, nor shall any waiver of an applicable privilege or doctrine by the conduct of one Party be construed to apply to the other Party.
14. The Agencies will notify one another, through the agency point of contact identified in this Agreement, upon commencement of litigation, a hearing, or other proceeding that may involve the release, through subpoena, introduction of written evidence, or testimony, of information exchanged under this Agreement.
15. In addition to the requirements above, Confidential Unemployment Compensation information may be exchanged only subject to the confidentiality requirements of 20 CFR 603.4, C.R.S. § 8-72-107, C.R.S. § 8-47-203, C.R.S. § 24-72-101, et seq., and any applicable state laws.
16. In the event that there is a public proceeding, such as a trial, in which confidential information may be used or testimony of WHD’s employees sought, the WHD requires that CDLE notify WHD. In the event that there is a public proceeding, such as a trial, in which confidential information may be used or testimony of CDLE’s employees sought, the CDLE requires that WHD notify CDLE.
17. For information security purposes, information (including paper-based documents and electronic information such as emails and CDs) exchanged pursuant to this Agreement remains the responsibility of the Donor Agency while in transit. The Agencies agree to establish a communication protocol for notifying each Agency’s designated contact person when information is sent to or received from that Agency, including information on the form of the transfer and the media type and quantity (when appropriate). An Agency expecting to receive information will notify the Donor Agency if the information is not received as of the next business date following the agreed upon delivery date.
18. For information security purposes, after an Agency receives information from the Donor Agency, the Donor Agency retains no responsibility for any security incidents, inadvertent disclosure, or the physical and information technology safeguards in place for protecting that information by the Agency that received it.
19. However, in the event that the Agency receiving the information experiences a security incident or disaster that results in the suspected or confirmed inadvertent disclosure of the data exchanged pursuant to this Agreement, the Agency experiencing the incident or disaster will send formal written notification to the Donor Agency’s designated contact person within 3 days after detection of the incident or disaster. The written notification will describe the security incident or disaster in detail including what data exchanged pursuant to this Agreement may have been inadvertently disclosed.
20. The Agencies will notify one another, through the Agency point of contact identified in this Agreement, upon commencement of litigation, a hearing, or other proceeding that may involve the release, through subpoena, introduction of written evidence, or testimony, of information exchanged under this Agreement.

Subject to the foregoing constraints:

21. The Agencies agree to exchange information on laws and regulations of common concern to the Agencies, to the extent practicable.
22. The Agencies will establish a methodology for exchanging investigative leads, complaints, and referrals of possible violations, to the extent allowable by law and policy.
23. The Agencies will exchange information (statistical data) on the incidence of violations in specific industries and geographic areas, if possible.
24. Liability of the U.S. Government is governed by the Federal Torts Claims Act.

Outreach and Education

25. When appropriate and feasible, the Agencies agree to jointly disseminate outreach materials, conduct joint outreach presentations, and prepare and distribute publications of common concern for the regulated community. Any such dissemination may not be undertaken without prior notice of each Party.
26. The Agencies agree to provide, where feasible and appropriate, a hyperlink on each Agency's website linking users directly to the outreach materials in areas of mutual jurisdiction and concern.
27. All public materials bearing the United States Department of Labor ("USDOL") or WHD name, logo, or seal must be approved in advance by WHD. All materials bearing the CDLE name or logo must be approved in advance by CDLE. Any such materials that include the opinions, results, findings and/or interpretations of data arising from the results of activities carried out under the Agreement shall state that they are the responsibility of the party carrying out the activity and do not necessarily represent the opinions, interpretation, or policy of the other partner.

Resolution of Disagreements

• Disputes arising under this Agreement will be resolved informally by discussions between Agency points of contact, or other officials designated by each Agency.

Period of Agreement

• This Agreement becomes effective upon the signing of both Parties, and will expire 3 years from the effective date. This Agreement may be modified in writing by mutual consent of both Agencies. The Agreement may be cancelled by either Party by giving thirty (30) days advance written notice prior to the date of cancellation. Renewal of the agreement may be accomplished by written agreement of the Parties.

This Agreement is effective as of the _______ day of _______, 2018.