The U.S. Department of Labor’s (DOL) 2010 spring regulatory agenda includes proposals containing bold new compliance burdens on employers. The DOL’s strategy for preempting violations of the FLSA, OSHA and equal employment opportunity laws includes requiring employers to prepare and adopt compliance plans. The DOL is hoping to reduce the number of overtime violations and misclassification of workers by requiring employers to document many of their decisions and to share that information with their workers and the government. Deputy Labor Secretary Seth Harris stated that the agenda is focused on rooting out possible violations in industries such as restaurants and discount retailing (for wage violations) and coal mining and construction (for safety violations) where employers often determine that the cost of compliance is outweighed by the financial benefits of violating the laws and the perceived low risk of getting caught.
Harris wants to foster employer compliance and replace what he described as the “catch me if you can” mentality of businesses. To accomplish this, the DOL is seeking to propose rules that would require employers to put together a plan designed to avoid violations of the workplace laws, implement the plan and make sure that the implemented plan is effective at preventing violations. The specifics of exactly what employers would be required to do are not yet determined. Harris did provide one example—to prevent worker misclassification, employers would be required to prepare a written explanation of why workers should be considered independent contractors rather than employees, which would be shared with their workers.
The proposed rules are still in the early drafting stages, and employers are expected to be given a chance to respond before any final rules are issued. While the process is expected to take more than a year, employer groups are anxious to see more details of the proposal.