In accordance with memoranda of understanding between the Secretary of Labor and the Attorney General, the Department of Labor is responsible for conducting the investigation concerning the appropriateness of granting an application for exemption from a disqualified individual's employment disability under both 29 U.S.C. § 504 and § 1111. Moreover, because it is the policy of the Department of Justice to treat motions for reduction of the period of disability similarly to applications for exemption, any investigation concerning the appropriateness of a reduction of the length of disability should also be conducted in cooperation with the appropriate office of the Department of Labor.

Therefore, when a petition for exemption from the disqualification in a particular prohibited capacity is filed by the convicted individual in a federal district court or when a motion for reduction of the length of disability is filed in the federal or state court in which the convicted individual was sentenced for his or her disqualifying crime, ordinarily it will be necessary to seek a continuance of the proceeding. The continuation allows the Department of Justice and the Department of Labor an adequate opportunity to coordinate their litigative positions and to provide sufficient time for any necessary investigation by the Office of Labor-Management Standards (29 U.S.C. § 504) or the Employee Benefits Security Administration (29 U.S.C. § 1111) of the Department of Labor. At the time of sentencing, a continuance may be sought on the grounds that neither statutory disability is a part of the sentence and, therefore, relief may be considered in a separate and subsequent proceeding.

When relief by way of exemption or reduction of the disability is considered as part of a plea or sentence agreement, the Secretary of Labor's statutory rights to notice and representation in these relief proceedings may not be waived or negotiated away as a part of the plea or sentencing bargain. Coordination with the Department of Labor furthers the statutory scheme which is intended to ensure that the disability not be set aside for purposes which are inconsistent with the Federal laws governing the internal affairs of labor unions and the operation of employee benefit plans and which reflect a “clear demonstration by the convicted person that he or she has been rehabilitated since commission of the disqualifying crime and can therefore be trusted not to endanger the organization in the position for which he or she seeks relief from disability.” U.S. Sentencing Commission, Guidelines Manual § 5J1.1. Relief from Disability Pertaining to Convicted Persons Prohibited from Holding Certain Positions (Policy Statement). The Federal prosecutor should consider carefully the effect which the convicted offender's continued employment in regard to a labor union, employee benefit plan or employer association may have on the organization's members and participants.

[updated January 2020] [cited in JM 9-138.100]