Mind the Overlap: Coordinating Implicit Overlaps in Agency Jurisdiction

Abstract

Administrative law scholars have explored how Congress designs overlapping agency authority to carry out complementary agency goals. While discussion of these overlaps is largely positive, what happens when Congress leaves an implicit overlap unaddressed? This Paper explores EEOC and NLRB’s overlapping authority over union sexual harassment claims to analyze whether implicit overlaps merit the same support. Unlike explicit overlaps, inattention to implicit overlaps can decrease transparency and efficiency, create procedural confusion, and lead to conflicting legal standards. The Paper assesses solutions by agencies, Congress, and courts, and explores unique separation of powers issues in addressing ambiguous jurisdictional overlap.