By Michelle D. Wyrick
Recently, the United States Department of Labor (“DOL”) announced plans to pursue a new regulatory and enforcement strategy that would require employers to demonstrate compliance with certain federal employment laws. The DOL’s new initiative, named “Plan/Prevent/Protect,” puts the burden on employers to prove, and will require employers to create plans and processes to show, compliance with certain federal employment laws. Employers will have to create compliance plans, implement the plans, and periodically evaluate their plans’ effectiveness.
One of the first proposals supporting the Plan/Prevent/Protect agenda was made by the Wage and Hour Division (“WHD”). WHD is proposing that any employer who seeks to exclude workers from coverage under the Fair Labor Standards Act (“FLSA”) would be required to perform a classification analysis, disclose the analysis to the worker, and retain the analysis in the event that WHD requests it. The Occupational Safety and Health Administration, the Mine Safety and Health Administration, and the Office of Federal Contract Compliance Programs are also proposing regulations to support the Plan/Prevent/Protect agenda.
Employers should be aware of the DOL’s initiative. If the DOL implements its regulatory agenda, employers should be prepared to review their existing policies and job classifications, to update and distribute their policies, and to train their employees on compliance.
Recent actions by the DOL all point to a more aggressive enforcement strategy by the DOL. The DOL’s “Plan/Prevent/Protect” initiative follows on the heels of its campaign designed to protect the rights of low wage workers. “We Can Help,” which is being led by WHD, focuses on reaching employees in industries such as construction, janitorial work, hotel/motel services, food services, and home health care. The campaign addresses topics like workplace rights and filing complaints to recover wages owed. The DOL is using Spanish/English bilingual public service announcements, a new website, and a toll-free hotline to reach and assist low-wage workers.
In light of the DOL’s initiatives, employers should ensure that their job descriptions and employee classifications are accurate and up to date. Employers should also look at their pay practices and policies to ensure that employees are being paid as required by law and that accurate records are being kept.