Dozens of administrative agencies regulate American workplaces. Yet, those agencies often fail to coordinate to their full potential, leaving workers and employers without efficient and just labor market regulation. For example, consider the 2015 memorandum of understanding (MOU) between the EEOC and the DOJ’s Civil Rights Division regarding ADA and GINA charges against state and local governments, which clarifies the jurisdiction of the respective agencies, but fails to establish a mechanism for sharing information between them. On the other hand, the MOU between the DOL and the DOJ regarding criminal prosecutions of workplace safety laws from the same year establishes an information-sharing mechanism, but fails to coordinate interagency investigation and enforcement efforts. Neither commits to interagency consultations, compliance reviews, or research initiatives.
Should they? How are federal labor market regulators coordinating, and what might ideal coordination look like? Professor Hiba Hafiz’s new essay, Interagency Coordination on Labor Regulation, answers those questions with the support of untold legal histories, administrative law doctrine, and a remarkable empirical analysis. She assesses how these regulators coordinate in haphazard, ineffective ways—like long-time business partners slowly hammering out, over the span of decades, how to best work together when they could have sat down and established the framework for an efficient working relationship years earlier. Having explicated the problem, she concludes by identifying some best practices and offering a normative proposal for agencies to benchmark the effectiveness of their coordinating efforts. In my estimation, Hafiz’s essay is that rare piece that not only identifies a problem that has not been given proper attention, but also proposes a salve that would make regulation more just and more efficient at the same time.
Hafiz begins by untangling the history of interagency coordination of labor regulation, which predominantly has been achieved via MOUs. Shockingly, to me at least (and probably to many others in my generation who only began to first study workplace law during the Obama Administration), interagency coordination of labor regulation began in the Nixon Administration as a tool of deregulation. For instance, Nixon- and Ford-era interagency coordination sought to: (a) delimit agencies’ jurisdictional boundaries so businesses wouldn’t be regulated by competing forces; and (b) mandate a centralized review of significant regulations to minimize unnecessary and burdensome overlap. Future Republican administrations largely mirrored this approach, whereas Democratic administrations leveraged interagency coordination for pro-regulatory ends such as the Obama Administration’s “expansive use of MOUs to ensure interagency coordination on worker protections and labor market regulation”—part of its broader “system of ‘strategic enforcement’ to prioritize high-propensity violators.” (P. 218.)
This history is a law-reform goldmine. Trying to convince a conservative regulator to pursue interagency coordination? Talk up its deregulatory merits. Progressive regulator? Talk up its utility as a tool for strategic enforcement. Indeed, interagency coordination is often both at the same time, as with Obama-era initiatives to streamline investigations and coordinate referrals between agencies, which was simultaneously deregulatory (because it decreased regulatory overlap) and a conduit for strategic enforcement (because it “target[ed] policy priorities in a range of underregulated areas or areas where workers were particularly vulnerable”). (Pp. 218-20.) Consolidating this complex history into a few digestible pages not only offers an expansive menu of options for interagency coordination, but also demonstrates that such efforts can serve seemingly-discordant ends. While I fully recognize that others might value the history that Hafiz has marshaled here out of intellectual curiosity, a desire to be exposed to different perspectives, or to leverage that history in furtherance of legal arguments, I found it most beneficial as a means of highlighting the sorts of external pressures that can effectively shape regulation.
Subsequently, Hafiz analyzes 112 examples of interagency coordination (e.g., MOUs) in an effort to identify best practices like “joint enforcement, joint investigation, and information-sharing.” (P. 228.) She then concludes by proposing six policy considerations that ought to drive benchmarking of the effectiveness of interagency coordination. Grading agencies, as Hafiz has, on the extent to which they effectuate the purposes underlying marquee workplace laws is ideal. It helps further Congressional intent and, therefore, mitigate against the common critique in both administrative law and workplace law circles—a critique levied with renewed zeal in the wake of the Supreme Court striking down the Biden Administration’s flagship workplace vaccine-or-test mandate in National Federation of Independent Business v. Occupational Safety and Health Administration—that the regulation of workplaces by unelected agencies is undemocratic.
If laws are like sausages (it’s better not to see them being made), I can only imagine what metaphor might appropriately describe regulations. At present, regulating the workplaces is a complex and dirty affair. Overlapping and underlapping jurisdictions. Opaque policies and practices. Fragmented approaches. Entropy. Into that morass, Hafiz’s essay deftly shines a light. And, more than that, she offers sound solutions for how to clean it all up.