Plan/Prevent/Protect – The New Strategy to Enforce Compliance with Federal Employment Laws

By
May 21, 2010

On April 26, 2010, the Department of Labor (“DOL”) announced a new program to enforce compliance with federal employment laws. The program is one of President Obama’s initiatives. The program, entitled “Plan/Prevent/Protect,” will allow the DOL to leverage its limited resources by shifting the burden of proving compliance to the employer. While this program has not yet been launched by the DOL, it will be implemented by regulatory actions enforced by the Occupation Safety and Health Administration (“OSHA”), Mine Safety and Health Administration, Office of Federal Contract Compliance Programs, and the Wage and Hour Division (“WHD”). The DOL’s goal for Plan/Prevent/Protect is to encourage greater compliance by creating awareness of workplace rights among employees. Employees will be enabled to report violations that, according to the DOL, will allow effective enforcement of federal employment laws. The DOL says that “[e]mployers and others in the Department’s regulated communities must understand that the burden is on them to obey the law, not on the Labor Department to catch them violating the law. This is the heart of the Labor Department’s new strategy.” The program will require employers to create compliance plans and processes, as well as designate people that will be tasked with achieving compliance in the work place. Employers will then need to implement the plans and evaluate their effectiveness in achieving compliance. Plan/Prevent/Protect consists of three steps that employers must address. The “Plan” step consists of creating a compliance program to identify and solve any areas of risk in the workplace, including risks of legal violations and safety. The compliance program would be made available to employees so that they may help monitor compliance. To enact the second step, “Prevent,” the employer will need to implement the compliance program in a manner that will prevent legal violations and safety risks. To enact the third step, “Protect,” the employer will need to review the compliance program on a regular basis to ensure that it meets its objectives. Agencies under the DOL will enact regulations to implement Plan/Prevent/Protect. One specific action that will be taken by OSHA will be to require employers to develop and implement an injury and illness prevention program to avoid safety and health hazards in the workplace. OHSA may also enact regulations requiring employers to establish an employee infection control program to protect employees from contracting infectious diseases in places where employees would be at most risk. OSHA will begin to develop rules for its injury and illness prevention program in the spring and summer of 2010. Rulemaking to implement Plan/Prevent/Protect will also be proposed by WHD to require employers to provide information to employees regarding their employment. One rule contemplated by WHD would require the employer to perform an analysis if it determines that an employee is excluded from Fair Labor Standard Act coverage. This analysis would then be provided to the employee. This requirement would affect those employers who retain independent contractors, as a classification analysis would need to be performed to show why the worker was classified as an independent contractor as opposed to an employee. While Plan/Prevent/Protect is merely in the planning stages, employers need to be aware of these proposed rules so that they can be integrated into the employer’s compliance efforts.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

Back to all News & Insights

This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.

© 2024 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.