The U.S. Department of Labor’s (DOL) Plan/Prevent/Protect regulatory agenda has been featured in the department’s Strategic Plan for Fiscal Years 2011-2016.
Plan/Prevent/Protect is based on the principle that employers and others must “find and fix” violations, assuring compliance before a DOL investigator arrives at the workplace, notes the strategic plan, which was released Sept. 30, 2010.
“Employers and others in the department’s regulated communities must understand that the burden is on them to obey the law, not on DOL to catch them violating the law. This principle is at the heart of this new DOL worker protection strategy. DOL is going to replace ‘catch me if you can’ with Plan/Prevent/Protect.”
The DOL noted that many employers already have a culture of compliance, while some have difficulty complying because they lack an understanding of employment laws and regulations.
But there also are other employers that rely on luck to avoid their violations of workers’ rights being detected. “They make a calculated decision whether to comply,” the DOL stated. “They assess the benefits of refusing to comply with the law and compare them to the costs of complying with the law. Then, they weigh these costs and benefits against the likelihood they will be caught and the penalty they might suffer if caught.”
These employers wait to see if the DOL will intervene to force compliance instead of taking the responsibility to comply on their own. “They are playing a dangerous game of ‘catch me if you can.’ And they are putting workers’ rights (and, in some cases, even their own lives) at risk,” the strategic plan states.
DOL’s few thousand inspectors cannot be in every part of the workplace every day, the department noted. “The department cannot abide an economic calculus that exploits the fact that the DOL inspectors cannot and should not look over every employer’s shoulder.”
Plan/Prevent/Protect aims to “change the calculus” so employers will take responsibility for employment law compliance.
As part of this initiative, the Occupational Safety and Health Administration, Mine Safety and Health Administration, Office of Federal Contract Compliance Programs, and Wage and Hour Division will propose regulations that require employers to develop programs to address certain employment law compliance issues within each agency’s purview.
Although the specifics will vary by law, industry and regulated entity, the strategy will require regulated entities to take three steps to ensure compliance:
–Plan to find and fix violations of the law and other risks to workers.
–Implement their plans in a manner that prevents violations of the law.
–Assure that the plan protects workers.
“Employers who fail to take these steps to comprehensively address risks, hazards and inequities in their workplaces will be considered out of compliance with the law and, depending upon the agency and the substantive law it is enforcing, subject to remedial action,” the strategic plan states.
The DOL noted that the Wage and Hour Division plans to publish a notice of proposed rulemaking in 2011 on Fair Labor Standards Act (FLSA) recordkeeping regulations, which it described as an example of the Plan/Prevent/Protect strategy. “The FLSA recordkeeping regulations under development will require that covered employers notify each of their workers of their rights under the FLSA, and provide employees with information regarding their hours worked and wage computations,” the department stated.
And the Office of Federal Contract Compliance Programs plans to dedicate additional resources to increase its monitoring of how federal contractors self-audit and correct identified problem areas.
Five Strategic Goals
In addition to noting such innovative strategies as Plan/Prevent/Protect, the strategic plan outlined the following five strategic goals:
–Prepare workers for good jobs and ensure fair compensation.
–Ensure workplaces are safe and healthy.
–Assure fair and high quality work-life environments.
–Secure health benefits and, for those not working, provide income security.
–Produce timely and accurate data on the economic conditions of workers and their families.
14 Outcome Goals
The DOL also outlined the following 14 outcome goals:
–Increase workers’ incomes and narrow wage and income inequality.
–Assure skills and knowledge that prepare workers to succeed in a knowledge-based economy, including in high growth and emerging industry sectors like green jobs.
–Help workers who are in low-wage jobs or out of the market find a path into middle-class jobs.
–Help middle-class families remain in the middle class.
–Secure wages and overtime.
–Foster acceptable work conditions and respect for workers’ rights in the global economy to provide workers with a fair share of productivity and protect vulnerable people.
–Secure safe and healthy workplaces, particularly in high-risk industries.
–Break down barriers to fair and diverse workplaces so that every worker’s contribution is respected.
–Provide workplace flexibility for family and personal caregiving.
–Ensure worker voice in the workplace.
–Facilitate return to work for workers experiencing workplace injuries or illnesses who are able to work.
–Ensure income support when work is impossible or unavailable.
–Improve health benefits and retirement security for all workers.
–Provide sound and impartial information on labor market activity, working conditions and price changes in the economy for decision-making, including support for the formulation of economic and social policy affecting virtually all Americans.
The DOL also noted that Wage and Hour’s enforcement of the FLSA will be concentrated in high-risk industries such as the agricultural, janitorial, construction and hotel/motel industries.
And it added that misclassification of workers as independent contractors is more prevalent in several high-risk industries: construction, janitorial, home health care, child care, transportation and warehousing, meat and poultry processing, and other professional and personnel service industries. The Wage and Hour Division plans to conduct more investigations of misclassified workers in these key industries. The DOL said that misclassification of workers may affect 10 to 30 percent of employers.
Allen Smith, J.D.