DOL Watchdog: Department Lacked Oversight of Common Interest Agreements

The Department of Labor failed to establish adequate safeguards over its use of common interest agreements with private plaintiffs’ attorneys, creating risks to confidential information and undermining public confidence, the department’s inspector general told lawmakers Wednesday.

Testifying before the House Committee on Education and the Workforce, Inspector General Anthony D’Esposito said the DOL lacked basic oversight of the agreements, including policies to screen for conflicts of interest, systems to track their use and consistent criteria for approving them. He said those deficiencies made it difficult to monitor employees’ participation in the agreements and increased the risk of misuse.

The testimony followed a recent Office of Inspector General audit that found the department’s Employee Benefits Security Administration, the Wage and Hour Division, and the Office of the Solicitor all lacked formal policies, coordination procedures and tracking mechanisms governing common interest agreements between January 2023 and June 2025. The report recommended that each agency implement formal policies, establish coordination processes, create tracking systems and strengthen employee training. All three agencies agreed to follow the recommendations.

Common interest agreements allow the DOL to share certain information with outside parties that have aligned legal interests, such as plaintiffs pursuing litigation under the Employee Retirement Income Security Act. While D’Esposito acknowledged the department has legal authority to enter into such agreements, he told lawmakers the issue was not whether they are permissible, but that the department “had no criteria for deciding when to say yes.”

Democrats defended the practice during the hearing, with Representative Mark Takano, D-California, describing common interest agreements as a legally permissible, but infrequently used, enforcement tool. D’Esposito responded that, regardless of how often they are used, agencies need clear internal controls to ensure the agreements are appropriately managed and do not erode public trust.

Last year, Ali Khawar, the former deputy head of EBSA, defended the use of the agreements under former President Joe Biden during a July 2025 House Education and Workforce Committee hearing, noting that the agency entered into only 12 common interest agreements in the prior 15 years and that ERISA grants the agency the right to share information with interested parties.