Update on DOL "Plan, Prevent, Protect" Roll-out

The DOL Fall 2011 Regulatory Plan statement provides an update on the roll-out of their “Plan, Prevent, Protect” initiative.

Plan/Prevent/Protect Compliance Strategy

The Department has already published several regulatory actions toward the completion of requirements that employers develop programs to address specific issues of worker protection, security, and equity. Some of these issues have included controlling the spread of infectious diseases, examining work areas in underground coal mines for mandatory violations, and identifying patterns of violations in mines. The collection of regulatory actions in the Department’s Plan/Prevent/Protect strategy is designed to ensure employers and other regulated entities are in full compliance with the law every day, not just when Department inspectors come calling. As announced with the Spring 2010 Regulatory Agenda, this strategy requires employers and other regulated entities to:

“Plan”: Create a plan for identifying and remediating risks of legal violations and other risks to workers; for example, a plan to inspect their workplaces for safety hazards that might injure or kill workers. Workers will be given 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”: Thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. This will not be an exercise in drafting a plan only to put it on a shelf. The plan must be fully implemented.

“Protect”: Verify on a regular basis that the plan’s objectives are being met. The plan must actually protect workers from health and safety risks and other violations of their workplace rights.

Employers and other regulated entities who fail to take these steps to comprehensively address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, may be subject to remedial action.”

“Miranda Rights” for exempt workers: the initial announcement with regard to the strategy included a change in record-keeping under the Fair Labor Standards Act (FLSA) to require employers to give written explanation to employees of how their worker status (exempt from overtime or not, independent contractor or not) was determined. The Notice of Proposed Rulemaking (NPRM) has been not been published for this as yet.  The last estimated publication date was October 2011.

Under the original plan, still in the process of being rolled out, department by department, these are the likely record-keeping requirements which will be introduced with regard to worker status:

“This 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. The proposal will also address burdens of proof when employers fail to comply with records and notice requirements. In addition to serving the Department’s “Plan/Prevent/Protect” strategy, this initiative also contributes to the Labor Department’s efforts to prevent misclassification that denies workers employment law protections to which they are entitled.”  Read the complete DOL Fall 2011 statement of regulatory priorities update here.

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