The DOL Plan, Prevent, Protect Initiative

DOL Regulations Require Employers to Demonstrate Compliance With Federal Employment Laws 

The U.S. Department of Labor (“DOL”) recently announced that it will change dramatically how it regulates employers’ compliance with certain federal laws. This year, new regulations require employers to take affirmative steps to ensure compliance with federal wage-and-hour, safety, and anti-discrimination laws. 

New Compliance and Enforcement Strategy 

Although many employers are proactive, instituting policies compliant with wage-and-hour, safety, and anti-discrimination laws, many others are reactive, doing little until forced by an audit or employee complaint to act. The DOL, however, has made it clear that the latter approach will no longer suffice. In announcing its regulatory agenda, DOL Deputy Labor Secretary, Seth Harris, stated that too many businesses are playing a dangerous game of “catch me if you can,” putting workers’ rights and lives at risk. The DOL’s new strategy, dubbed “Plan, Prevent, Protect,” places the onus for federal compliance squarely on the shoulders of employers. Under the new strategy, employers must demonstrate to the DOL, and also their employees, that they are affirmatively complying with federal wage-and-hour, job safety and anti-discrimination laws. 

Implications of the “Plan, Prevent, Protect” Strategy 

As the title of the strategy suggests, the DOL will focus on three components. The “Plan” component means that employers are required to create plans and processes that assess and demonstrate compliance with the federal laws. The DOL is stating that employers will be obligated to distribute the plans to employees so that they can fully understand the plans and monitor their employers’ compliance. The “Prevent” component means that employers will be required to implement the plans and demonstrate to the workers that the plans are actually in use. And, the “Protect” component means that employers will be required to implement plans and evaluate their effectiveness. The ComplyAbility system goes to the heart of these requirements as they require training, comprehension and records retention.   

To illustrate, an employer seeking to comply with federal wage-and-hour laws is required by the new strategy to: (i) analyze each exempt job classification as well as each independent contractor position, including in collaboration with individual workers holding those positions, (ii) document the employer’s justification for finding that the workers are properly classified as exempt or independent contractors, as applicable, (iii) maintain records demonstrating the employer’s analysis of the classifications, (iv) provide records to the employer’s workers so that the workers can assess whether they agree with the classification analysis, and (v) conduct management as well as employee training to ensure that workers are appropriately trained to understand the differences between exempt and non-exempt employees and independent contractors. 

Similarly, an employer seeking to comply with federal safety laws is required by the new strategy to: (i) audit the employer’s relevant safety and health information, (ii) develop procedures for inspecting the workplace for safety and health hazards and investigating accidents, (iii) develop written plans to improve safety and demonstrate to workers that the plans have been implemented, (iv) circulate safety plans to workers so that they can understand the plans and monitor their employers’ compliance, (v) designate workers to monitor and evaluate the success of their employer’s compliance with the plans, (vi) conduct management and employee training on safety issues to ensure that employees are aware of and able to implement the plans, and (vii) create Injury and Illness Prevention Programs (“IIPP”).

Finally, an employer seeking to comply with federal anti-discrimination laws are required by the new strategy to: (i) draft, implement and disseminate a policy prohibiting discrimination, harassment and retaliation on the basis of protected categories, and (ii) conduct management and employee training to teach managers about their employer’s anti-harassment/discrimination policy and how to avoid the appearance of discrimination, harassment or retaliation, a requirement similar to that imposed by laws governing employers in California, Connecticut, Maine and the Virgin Islands. 

Goals of the New Strategy 

The “Plan, Prevent and Protect” strategy may in fact be an end-run around the legislative process. The Employee Misclassification Prevention Act, (S. 3254, H.R. 5107), recently introduced to Congress, directs the DOL to perform misclassification audits, and further requires employers to maintain records concerning the classification of independent contractors, notify workers of their classification and provide information on what to do if they feel they have been misclassified. The DOL, apparently unwilling to wait and see if Congress will pass this proposed legislation, has decided to effectively bypass Congress through regulatory enforcement of the “Plan, Prevent and Protect” strategy. 

The DOL’s stated goal of “Plan, Prevent and Protect” is to increase employer compliance and promote openness and transparency for workers in the workplace.  While the new strategy is designed to increase employer compliance with federal laws. Undoubtedly it imposes significant burdens on employers that distract from the core purpose of their businesses while at the same time encouraging workers — especially those who may already be litigious — to file complaints with the DOL or bring civil lawsuits against their employer for perceived violations of the new regulatory scheme.   

Be Prepared 

Given the DOL’s announced game plan, employers are best advised to be prepared. First steps are to conduct workplace audits of company wage-and-hour policies and practices, specifically with regard to the classification of workers, and reclassify any workers perceived to be misclassified; audit their safety policies and practices and implement an IIPP; audit their anti-discrimination policies and practices, and implement and distribute policies prohibiting harassment, discrimination and retaliation; and conduct regular trainings in federal wage-and-hour, safety. and anti-discrimination laws

NOTE:  Utilizing the ComplyAbility system insures that employers are in compliance with these new DOL directives.  It is critical that the training, as well as documents available via the ComplyAbility system are completed and that your employees are trained, tested for comprehension, and the records of that training are readily available.  There is simply no reason not to be in compliance with these federally mandated employer requirements, and ComplyAbility is the most effective, not to mention the most economical means of doing so.  You must insist that your employees utilize the ComplyAbility system and complete their required training as a condition of employment. 

ComplyAbility is a regulatory compliance and liability protection tool unlike any other. If you have questions about this new Department of Labor initiative, we invite you to give us a call, or simply call our toll free Hotline number as provided in the ComplyAbility system.

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