According to the Department of Labor’s Spring 2010 Regulatory Narrative, they have a new strategy on increasing compliance:
“We are going to replace ‘catch me if you can’ with ‘Plan/Prevent/Protect’. In various ways, employers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with compliance. They will be required to implement these plans and evaluate their effectiveness in achieving compliance. While the Labor Department can be flexible about which path is chosen to achieve compliance, compliance will be non-negotiable under the ‘Plan/Prevent/Protect’ system.”
The narrative states that OSHA, MSHA, OFCCP and WHD will propose regulatory actions that would require employers to develop programs to address various employment law compliance issues. The Department of Labor indicates that the proposed strategy has “three steps to ensure safe and secure workplaces and compliance with the law:”
- Plan – employers would be required to create a plan for identifying and remediating risks of legal violations. Employers would provide their employees with opportunities to participate in the creation of the plans, and the plans would be available to employees so they understand them and can help monitor their implementation
- Prevent – employers would be required to thoroughly and completely implement the plan in a manner that prevents legal violations. In order to comply with the strategy, the plan must be fully implemented
- Protect – employers would be required to ensure on a regular basis that the plan’s objectives are met
In discussing these three , the Department of Labor indicates that “the plan cannot be a mere paper process. The employer… cannot draft a plan and then put it on a shelf”, and “just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”
It remains to be seen whether the Plan/Prevent/Protect system requirements will be implemented. Assuming that they are, it’s not clear how the Department of Labor is going to enforce the requirements. The goal of the new strategy is to “”leverage limited resources to increase compliance”; it seems as though those resources would be focused on ensuring compliance with the new strategy rather than on compliance with applicable laws.
One thing, however, is clear. The regulatory environment is evolving, and employers need to be proactive about managing their compliance.
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