The U.S. Department of Labor plans to propose a new department-wide regulatory and enforcement strategy entitled “Plan/Prevent/Protect” to leverage limited resources to increase compliance. DOL described this strategy in its recently released Spring 2010 Regulatory Agenda. The new strategy is only at the anticipated proposal stage, and any official implementation would be several months away.
“Plan/Prevent/Protect” is intended to replace the “catch me if you can” approach used by those employers that depend on luck or coincidence to avoid violations. Under the new strategy, employers will be asked to assemble plans, create processes, and designate people charged with achieving compliance. Employers will be required to implement these plans and evaluate their effectiveness in achieving compliance.
The new Plan/Prevent/Protect enforcement strategy marks an expansion of requirements historically used by certain DOL agencies such as OFCCP. OFCCP, as well as the Occupational Safety and Health Administration (OSHA), Wage and Hour Division (WHD), Mine Safety and Health Administration (MSHA), will propose regulatory actions that require employers to develop programs to address certain employment law compliance issues. The specifics will vary, but all regulated entities will be required to take three steps to ensure compliance:
1. Plan: DOL will propose a requirement that employers create a plan for identifying and remediating risks of legal violations and other risks to workers. The employer would provide their employees with opportunities to participate in the creation of the plans. In addition, the plans would be made available to workers so they can fully understand them and help to monitor their implementation.
2. Prevent: DOL will propose a requirement that employers thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer cannot draft a plan and then “put it on a shelf.” The plan must be fully implemented for the employer to comply with the Plan/Prevent/Protect compliance strategy.
3. Protect: DOL will propose a requirement that the employer ensures that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.
DOL also intends to use regulatory changes to produce greater openness and transparency in its compliance strategy. Plan/Prevent/Protect is intended to encourage greater levels of compliance and enhance awareness among workers of their rights and benefits. DOL also intends increased openness and transparency in the workplace to enable workers to report violations, which will assist the agency’s enforcement efforts and enhance compliance.
DOL cites the Wage and Hour Division’s (WHD) anticipated proposed rule on misclassification of employees under the Fair Labor Standards Act (FLSA) as an example of Plan/Protect/Prevent. WHD’s proposal would establish a requirement that employers provide workers with basic information about their employment, including how their pay is calculated. Any employer that seeks to exclude workers from the FLSA’s coverage would be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.
OFCCP’s proposed rulemaking on Construction Contractor Affirmative Action requirements is one of the DOL regulations that will fall under the Plan/Prevent/Protect regulatory and enforcement strategy.
A summary of the Plan/Prevent/Protect strategy is on the DOL Web site at: “Regulatory Agenda Narrative.”
EEOIMPACT will be following these and other OFCCP related developments and will provide more in-depth reporting and analysis to its senior corporate EEO and affirmative action members. Please contact Patricia Schaeffer, Executive Director, at patricia.schaeffer@eeoimpact.com if you have any questions.
