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Plan, Prevent, Protect: Anticipated DOL Regulations Will Require Employers to Demonstrate Compliance With Federal Employment Laws

May 17, 2010

The U.S. Department of Labor (“DOL”) recently announced that it will change dramatically how it regulates employers’ compliance with certain federal laws. Within the next year, it will issue regulations requiring 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 for Spring 2010, 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 will be required to create plans and processes that assess and demonstrate compliance with the federal laws. The DOL is considering requiring employers to work with employees in the creation of these plans and, at the very least, 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 designate certain workers to be charged with implementing plans and evaluating their effectiveness.

To illustrate, an employer seeking to comply with federal wage-and-hour laws may be 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 training to ensure that managers 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 may be 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, possibly in conjunction with workers, 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 trainings on safety issues to ensure that managers are aware of and able to implement the plans they create, and (vii) create Injury and Illness Prevention Programs (“IIPP”), already required for California employers.

Finally, an employer seeking to comply with federal anti-discrimination laws may be 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 trainings 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, may 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 will likely increase employer compliance with federal laws, undoubtedly it also will impose 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 management trainings in federal wage-and-hour, safety. and anti-discrimination laws.

 

For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:

Boston
John Adkins, john.adkins@bingham.com, 617.951.8551
Jenny Cooper, jenny.cooper@bingham.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, louis.rodriques@bingham.com, 617.951.8340

Los Angeles/Orange County
Jacqueline Aguilera, jacqueline.aguilera@bingham.com, 213.229.8439
Debra Fischer, debra.fischer@bingham.com, 213.680.6418

San Francisco
James Severson, james.severson@bingham.com, 415.393.2242

New York
Douglas Schwarz, douglas.schwarz@bingham.com, 212.705.7437

Tokyo
Mie Fujimoto, mie.fujimoto@bingham.com, 81.3.6721.3138

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