By: Judith E. Kramer

In unveiling its semiannual regulatory agenda on April 26, the Department of Labor (“DOL”) announced its plans to propose regulations in each of its enforcement agencies that will place new requirements on employers. 

 DOL’s new strategy, called ”Plan/Prevent/Protect,” would require employers to create Compliance Action Plans to address compliance with the Occupational Safety and Health Act, the Mine Safety and Health Act, Executive Order 11246 (non-discrimination and affirmative action) and the Fair Labor Standards Act, among other programs.  Although the specifics will vary by law, and will be instituted only after employers and others have an opportunity to comment during rulemaking procedures, the new strategy will require all regulated entities to take three steps to ensure safe and secure workplaces and compliance with the law.  DOL’s regulatory agenda describes the strategy as follows:

“Plan”: DOL will propose a requirement that employers and other regulated entities create a plan for identifying and remediating risks of legal violations and other risks to workers—for example, a plan to search their workplaces for safety hazards that might injure or kill workers.  The employer or other regulated entity 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.

“Prevent”: DOL will propose a requirement that employers, and other regulated entities, thoroughly and completely implement the plan in a manner that prevents legal violations.  The plan cannot be a mere paper process.  The employer or other 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.

“Protect”: The Department will propose a requirement that the employer or other regulated entity 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.
 

Although the specifics of the new strategy will unfold during the rulemaking process, which has not yet begun, DOL has given examples of how the new strategy might work.  In the case of employers’ designation of workers as exempt under the FLSA or as independent contractors, for example, employers would be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to Wage and Hour enforcement personnel who might request it.  Currently, there is no requirement that employers perform or retain such a written analysis, nor are employers required, if they have such an analysis, to provide it to a government agency. 
 

Similarly, the new strategy would require employers to provide their employees with opportunities to participate in the development and implementation of an injury and illness prevention program, including a systematic process to proactively and continuously address workplace safety and health hazards.  This rule would involve planning, implementing, evaluating, and improving processes and activities that promote worker safety and health, and address the needs of special categories of workers (such as youth, aging and immigrant workers).  Employers are not currently under any obligation to prepare such plans.

 DOL plans to initiate rulemaking over the next several months to impose these new requirements on employers.

For more information about the Department of Labor’s new enforcement strategy, contact Judith Kramer or any of the FortneyScott attorneys with whom you work or Jill Smith of WorkPlace HR.