The United States Department of Labor (DOL) recently announced Plan/Prevent/Protect, a sweeping regulatory agenda that will replace the “catch me if you can” method of assuring compliance with federal employment laws. Under the Plan/Prevent/Protect strategy, the DOL has directed the Occupational Safety and Health Administration (OSHA), Mine, Safety & Health Administration (MSHA), Office of Federal Contractor Compliance Programs (OFCCP), and the Wage & Hour Division (WHD) to propose regulations that require employers to develop programs demonstrating affirmative compliance with federal wage and hour, job safety and discrimination laws. As the name of the program, implies, the DOL will issue regulations that focus on:
- Planning. Employers will be required to create a plan for identifying and correcting risks of legal violations and other risks to workers, including the designation of people within the company to ensure compliance. Employees will have the opportunity to participate in the plan’s creation and must provide their workers with the plans so that “they can fully understand them and help to monitor their implementation.”
- Prevention. Employers will need to “thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer or regulated entity 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.”
- Protection. Employers must ensure that plan 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.”
Employers who fail to “address comprehensively the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law” and subject to remedial action by the DOL. Among other things, the strategy will require the WHD to promulgate regulations requiring employers to provide workers with basic employment information, including the methods of calculating their pay. An employer who wishes to exclude a worker from coverage under the Fair Labor Standards Act would need 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.”
