Employers Triple Play Protection
In my last two posts, I discussed the Department of Labor (DOL) as a primary influencer on how you set your policies and procedures around paying people through Administrative Interpretations and the We Can Help program. Both are beneficial to your employees, but how do you protect your business—and yourself—from violating the law and protecting your workers at the same time?
One way to protect yourself as an employer is to follow the third program: Plan/Prevent/Protect. This DOL strategic plan was released September 30, 2010. “Employers and others in the department’s regulated communities must understand that the burden is on them to obey the law, not on DOL to catch them violating the law.”1 This principle is at the heart of the new DOL worker protection strategy and replaces “catch me if you can” with Plan/Prevent/Protect (3P). It’s an expansion of many existing compliance requirements set by the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division, among others. The 3P strategy “will require all regulated entities to take three steps to ensure safe and secure workplaces and compliance with the law.”2 And although the details will vary by industry, laws, and regulations, the steps are the same:
- Plan to find and fix violations of the law and other risks to workers.
- Implement the plan to prevent violations of the law.
- Ensure that the plan protects workers.
Bottom line is that most employers will need to have some form of “compliance plan” in place. In the past, you’ve associated these types of plans with OSHA requirements for health and safety in the workplace. The 3P plan takes the idea across many new areas of a business and affects new industries. The DOL’s proposal “would establish a requirement that employers provide workers with basic information about their employment, including how their pay is calculated. Any employers that seek to exclude workers from the FLSA's coverage would be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.”3
So let’s put this all together. In the new DOL, it’s your responsibility to define and interpret any legal definitions as they concern the federal labor laws. There’s no longer any “get-out-of-jail-free card” with WHD Opinion Letters. You must create, publish, and execute on compliance plans backing up your interpretation of how you’re defining your labor policies. And now there are additional auditors and regulators across the country to ensure that you’re following the letter of the law and the regulations set forth in We Can Help. It does increase the burden on your HR and risk management groups to understand and follow all procedures because now you, as the employer, are subject to not only fines for violations of the law and the new regulations, but also the potential for back pay and class action suits.
The new strategies of the DOL will impact your business. The question is by how much. Employer protection will be about law interpretation, documented policies, and automating those policies so they’re applied consistently, all so WHD audits/investigations can be passed efficiently and with no violations. It won’t be easy (for example, “define changing clothes”), but if done right, you can be covered.
What plans do you have in place to make sure you’re staying compliant? Have you implemented the DOL’s 3P program? If so, how has it impacted your business? Share your thoughts and ideas by leaving a comment to this post.
Posted by Rochelle Schard, Industry Director, Infor WFM Workbrain
1 Leveraging Limited Resources to Increase Compliance: “Plan/Prevent/Protect,” DOL, paragraph 1.
2 Leveraging Limited Resources to Increase Compliance: “Plan/Prevent/Protect,” DOL, paragraph 5.
3 "Plan/Prevent/Protect": The Beginning of a Broader Regulatory and Enforcement Strategy, Records to be Kept by Employers Under the Fair Labor Standards Act (WHD), DOL.