PARTNERSHIP AGREEMENT BETWEEN THE U.S. DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION AND THE KENTUCKY LABOR CABINET

 

PARTNERSHIP AGREEMENT BETWEEN THE U.S. DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION AND THE KENTUCKY LABOR CABINET (PDF)

 

The United States Department of Labor, Wage and Hour Division (hereinafter referred to as “DOL/WHD” or “Department”), and the Kentucky Labor Cabinet (hereinafter referred to as “KLC”) (collectively referred to as “the agencies” or “the parties”) recognize the value of establishing a collaborative relationship to promote compliance with laws of common concern among the regulated community in the Commonwealth of Kentucky.

The agencies are forming this partnership to more effectively and efficiently communicate and cooperate on areas of common interest, including to share training materials, to provide employers and employees with compliance assistance information, to protect the rights of America’s workforce to be employed in a manner that is compliant with laws and regulations governing employment status, payment of wages, hours of work, safety and health, and unemployment insurance, and to conduct coordinated investigations and share information as appropriate.

THEREFORE, IT IS MUTUALLY AGREED THAT:

The agencies recognize the value of establishing a collaborative relationship to promote compliance with laws of common concern in the Commonwealth of Kentucky. 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 Memorandum of Understanding (MOU) agreement is intended to memorialize this understanding between DOL/WHD and KLC.  This MOU is a voluntary agreement that expresses the good-faith intentions of DOL/WHD and KLC; it is not intended to be legally binding, does not create any contractual obligations, and it is not enforceable by any party.  This MOU does not obligate and will not result in an exchange of funds, personnel, property, services, or any kind of financial commitment.  This MOU outlines procedures to be followed by both DOL/WHD and KLC in working together to address the need for protecting the rights of America’s workforce to be employed in a manner that is compliant with laws and regulations governing employment status, payment of wages, hours of work, safety and health, and unemployment insurance, and to coordinate investigations, and share information as appropriate, between DOL/WHD and KLC.

Agency Responsibilities

DOL/WHD enforces the Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act. DOL/WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act, and a number of employment standards and worker protections as provided in several immigration related statutes. Additionally, DOL/WHD administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act and other statutes applicable to Federal contracts for construction and for the provision of goods and services.

KLC is responsible for the administration and enforcement of a wide range of labor laws including minimum wage, overtime, wage payment, child labor, workers’ compensation and occupational safety and health.  Nothing in this MOU limits the KLC’s enforcement of these and other statutes it administers.

With the specific and mutual goals of sharing training materials, providing employers and employees with compliance assistance information, conducting coordinated investigations, and sharing information as appropriate, the parties agree to enter into this partnership.

The parties agree as follows:

I.          Purpose

The purpose of the MOU is to maximize and improve the enforcement of the laws administered by DOL's DOL/WHD and by KLC. This MOU will also encourage enhanced law enforcement and greater coordination between the agencies through sharing training materials, providing employers and employees with compliance assistance information, conducting coordinated investigations, and sharing information as appropriate.

II.        Provisions

The parties to this MOU agree as follows:

1. Outreach and Education

When appropriate and feasible:

• The agencies agree to coordinate, conduct joint outreach presentations, and prepare and distribute publications, when appropriate, for the regulated community of common concern.
• The agencies agree to work with each other to provide a side-by-side comparison of laws with overlapping provisions and jurisdiction.
• The agencies agree to jointly disseminate outreach materials to the regulated community, when appropriate. 
• All materials bearing the DOL or DOL/WHD name, logo, or seal must be approved in advance by DOL.
• All materials bearing the Kentucky Labor Cabinet name, logo, or seal must be approved in advance by KLC.

1. Points of Contact (POCs)

• The agencies designate the following POCs who will be 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.

Formal Contact
Karen Garnett-Civils
District Director
U.S. Department of Labor
Wage and Hour Division
600 Dr. Martin Luther King, Jr. Place
Room 352
Louisville, KY 40202
Telephone: 502-882-8710
Garnettcivils.Karen@dol.gov

 

WHD informal contacts:
Chris Binda
Assistant District Director
U.S. Department of Labor
Wage and Hour Division
600 Dr. Martin Luther King, Jr. Place
Room 352
Louisville, KY 40202
Telephone: 502-882-8713
Binda.Christopher@dol.gov

 

Matt Utley
Assistant District Director
U.S. Department of Labor
Wage and Hour Division
600 Dr. Martin Luther King, Jr. Place
Room 352
Louisville, KY 40202
Telephone: 502-882-8714
Utley.Matthew@dol.gov

 

KY formal contact: Kimberlee C. Perry, Commissioner of Workplace Standards 500 Mero Street, 3rd Floor Frankfort, Ky. 40601 502-782-7992 Kimc.perry@ky.gov

 

KY informal contact: Jeff Wiley, Assistant Director Division of Wages and Hours 500 Mero Street, 3rd Floor Frankfort, Ky. 40601 502-564-1522 Jeffs.wiley@ky.gov

 

• The agencies will designate a representative to meet every so often to review areas of mutual concern and the terms and conditions of the partnership.  Information regarding the representative, including name, title, address phone and email address, will be shared between the parties at the time of execution of this MOU and at the time that the identity of the representative changes.

1. Enforcement

Where appropriate and to the extent allowable under law, the agencies will:

• Conduct coordinated investigations periodically in the Commonwealth of Kentucky, if opportunity provides and to the extent allowable under law.

• Make referrals of potential violations of each others statutes, where appropriate.  

• Provide information regarding settlements or other dispositions of cases to the other party in a mutually agreed upon format so that appropriate follow-up may take place.

• Cooperate to the extent possible in providing testimony to support exchanged information which becomes the subject of administrative or civil proceedings consistent with the Exchange of information Section of this MOU.

• Notify each other of any request for information affecting shared data under the Freedom of Information Act and Kentucky Open Records laws so that the parties may protect shared data consistent with the Exchange of Information Section of this MOU.

1. Information

• It is the policy of DOL/WHD 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 DOL/WHD’s own statutory obligations and enforcement efforts.  It is DOL/WHD’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 DOL/WHD to provide information to other law enforcement bodies without making a public disclosure.

1. Training

• The agencies will exchange information related to policy or regulatory changes to State or Federal laws, to the extent permissible.

III.       Previous Agreements

• This MOU replaces and supersedes any previous Partnership Agreement MOU between the parties.

IV.       Effect of MOU Agreement

• This MOU does not authorize the expenditure or reimbursement of any funds.  Nothing in this MOU obligates the parties to expend appropriations or enter into any contract or other obligations. 

• By entering into this partnership, the agencies do not imply an endorsement or promotion by either agency of the policies, programs, or services of the other. 

• Nothing in this MOU is intended to diminish or otherwise affect the authority of either agency to implement its respective statutory or regulatory functions.

• This MOU is not intended to be legally binding and does not confer any rights on any private person.

• This MOU is an internal government agreement and is not intended to confer any rights against the United States, its agencies, or its officers upon any private person.

• Nothing in this MOU will be interpreted as limiting, superseding, or otherwise affecting the agencies’ normal operations or decisions in carrying out their statutory or regulatory duties, or duties under any Executive Order.  This MOU also does not limit or restrict the parties from participating in similar activities or arrangements with other entities.

• This MOU 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 laws and Kentucky state laws.

• This MOU contains all the terms and conditions agreed upon by the agencies concerning the subject matter of the agreement.  No other understandings, oral or otherwise, regarding the subject matter of this MOU shall be deemed to exist or be binding upon the agencies.  This MOU is not intended to confer any right upon any private person or other third party.

V.        Exchange of Information

To the extent permitted by law, the agencies understand that in order to effectuate the purposes and provisions of this MOU, it will be necessary, from time to time, to exchange information, some of which may be considered confidential. It is the policy of each of the parties 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 its own statutory obligations and enforcement efforts. It is the view of the parties that an exchange of information in which both agencies are proceeding with a common legal interest is to their mutual benefit.  The agencies to this MOU recognize the importance of being able to provide information to other law enforcement bodies without waiving the privilege of otherwise protected material or make a public disclosure.

It is the policy of DOL/WHD and KLC 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 DOL/WHD’s and KLC’s own statutory obligations and enforcement efforts.  It is DOL/WHD’s and KLC’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 DOL/WHD and KLC to provide information to other law enforcement bodies without making a public disclosure.

In consideration of these concerns, and subject to any applicable laws and regulations regarding the handling of such information, the agencies agree as follows:

1. The agencies agree to exchange information on laws and regulations of common concern and interest, to the extent practicable and allowable by law and policy.
2. The parties will be available to discuss and provide information to one another on topics of mutual interest, overlapping jurisdiction, or certain areas of expertise, when able.
3. Exchange of information to one another pursuant to this MOU is not considered a public disclosure under the Freedom of Information Act, 5 U.S.C.552.
4. When confidential information is exchanged, it shall be used and accessed only for the limited purposes of carrying out activities pursuant to this MOU as described herein.  The information shall not be duplicated or re-disclosed without the express written consent or authority of the agency providing the information (hereinafter the “donor agency”), a court order, or as required by law, including the Freedom of Information Act.
5. When confidential information is exchanged, it will not be released to the public, or to any third party, without the express permission of the agency providing that information, except as required by law including, but not limited to, the Kentucky Open Records Act KRS 61.870 to KRS 61.884.   Upon receipt of a public disclosure request, the parties agree to provide the donor agency with notice of the request and an opportunity to pursue legal action to prevent the release of information. 
6. Confidential information means information that may be privileged or otherwise exempt from disclosure to the public or other unauthorized persons under federal and state laws. Confidential information may include: the identity of persons who have given information to the agencies in confidence or under circumstances in which confidentiality can be implied; any employee statements in enforcement files that were obtained under these conditions; internal opinions, policy statements, memoranda, and recommendations of federal or state employees, including (but not limited to) investigators and supervisors; any records that would otherwise not be subject to disclosure under law as non-final, intra- or inter-agency documents; information or records covered by the attorney-client privilege and the attorney work-product privilege; personal information protected by any relevant law or regulation; individually identifiable health information; and confidential business information and trade secrets.
7. 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.
8. In the event that there is a public pro­ceeding, such as a trial, in which certain records, such as confidential information, may be used or testimony of DOL/WHD’s employees sought, DOL/WHD requires that KLC notify DOL/WHD.
9. In the event that there is a public proceeding, such as a trial, in which certain records, such as confidential information, may be used or testimony KLC employees sought, KLC requires that DOL/WHD notify KLC.
10. Should either party receive a request or subpoena that would, fairly construed, seek production of confidential information that it received pursuant to this MOU, 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.
11. 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.
12. The agencies will notify one another, through the agency POC identified in this MOU, 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 MOU.
13. In addition to the requirements above, states may only disclose confidential unemployment compensation information subject to the requirements of 20 CFR part 603 and any applicable state laws, including the requirement at 20 CFR 603.10 that states sign a data disclosure agreement prior to disclosing confidential UC information.
14. For information security purposes, information (including paper-based documents and electronic information such as emails and CDs) exchanged pursuant to this MOU 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 POC 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.  Confidential data will be destroyed no later than thirty (30) days after its use and may be transmitted via secure FTP.  Use includes the time period required for compliance with federal records retention periods.  Confidential data will not be electronically mailed, unless encrypted using approved encryption standards.
15. 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.
16. 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 MOU agreement, the agency experiencing the incident or disaster will send formal written electronic notification to the donor agency’s designated contact person immediately within three (3) days after detection of the incident or disaster.  The written electronic notification will describe the security incident or disaster in detail including what data exchanged pursuant to this MOU may have been inadvertently disclosed.
17. At the conclusion of an investigation and prosecution by either party, the receiving agency will return any and all confidential information to the donor agency, except as required by law, including the Records Retention Act.
18. The agencies agree to exchange information on laws and regulations of common concern to the agencies, to the extent practicable.
19. The agencies will establish a methodology for exchanging investigative leads, complaints, and referrals of possible violations, to the extent allowable by law and policy.
20. The agencies will exchange information (statistical data) on the incidence of violations in specific industries and geographic areas, if possible.
21. Liability of the U.S. Government is governed by the Federal Torts Claims Act.
22. Liability of the Kentucky Labor Cabinet is governed by state law.

VI.       Dissemination of Factual Information

• The agencies agree to jointly disseminate outreach materials to the regulated community when appropriate.  Any such dissemination may not be undertaken without prior notice of each party.

• All public materials bearing the United States Department of Labor (“USDOL”) or DOL/WHD name, logo, or seal must be approved in advance by USDOL.  Any such materials that include the opinions, results, findings and/or interpretations of data arising from the results of activities carried out under this MOU 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 party.

VII.     Resolution of Disagreements

• Disputes arising under this MOU will be resolved informally by discussions between agency POCs, or other officials designated by each agency.

VIII.    Period of Agreement

• This MOU becomes effective upon the signing of both parties, and will expire three (3) years from the effective date.  This MOU may be modified in writing by mutual consent of both agencies.  This MOU may be cancelled by either party by giving thirty (30) days advance written notice prior to the date of termination. Renewal of the MOU may be accomplished by written agreement of the parties.  

 

This MOU is effective as of the _______ day of ______________, 2020.