DoL Unveils New Enforcement Strategy

The DoL’s new initiative, “Plan/Prevent/Protect”: The Beginning of a Broader Regulatory and Enforcement Strategy, seeks to require companies to create Compliance Action Plans to address employment law compliance issues that fall under the purview of the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), the Office of Federal Contract Compliance Programs (OFCCP), and the Wage and Hour Division (WHD), according to Jay Sumner, a shareholder in the Albuquerque office of Littler Mendelson, and Mary E. Sharp, a shareholder in Littler Mendelson’s Atlanta office. The strategy seeks to place the burden for compliance on employers rather than place the burden of catching non-compliance on the DoL.  

Sumner and Sharp’s article posted on SHRM’s Web site says the DoL specifically describes the new program as follows:

• Plan: The Department [of Labor] will propose a requirement that employers and other regulated entities create a plan for identifying and remedying 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: The Department [of Labor] 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 [of Labor] 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.

The authors note that employers will not only have to comply with the underlying federal laws but also with the DoL’s new proposed regulations (assuming they become final rules) that will include plan creation, implementation, and a regular review of whether their plan objectives are being met.  

The specifics of the new program are still months away, and the authors said the business community will have the opportunity to provide input for the new regulations and initiative.