The Department of Labor (DOL) states many employers “have a culture of compliance,” while others “depend upon luck or happenstance to avoid workplace violations.”  Still others “make a calculated decision whether to comply with employment laws.”  This is a “catch me if you can” attitude.

P3 refers to Plan / Prevent / Protect and applies to those employers who are covered under the Wage and Hour Division (WHD), Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Office of Federal Contract Compliance Programs (OFCCP) and/or the Employee Benefits Security Administration (EBSA).

The stated goals of “Plan, Prevent, Protect” are to require employers to proactively prevent violations from occurring and to enlist employees in the planning and enforcement effort.  “Increased openness and transparency in the workplace,” notes the DOL, will “enhance awareness among workers of their rights” and “enable workers to report violations.”

The DOL has hired hundreds of additional inspectors, investigators and other enforcement officials and  warns that employers who fail to address risks, hazards, and inequities in their workplaces would be considered out of compliance and may be subject to remedial action.  The mission is to replace ‘catch me if you can’ with Plan/Prevent/Protect (P3).   Although DOL enforces some 180 laws, the main ones for employers to look at are:

  • Fair Labor Standards Act (FLSA)
  • Occupational Safety and Health Act (OSHA) and The Federal Mine Safety and Health Act (MSHA)
  • Family and Medical Leave Act (FMLA)
  • Executive Order 11246
  • Section 503 of the Rehabilitation Act of 1973
  • Davis-Bacon Act
  • Walsh Healey Public Contracts Act
  •  Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA)
  • Copeland “Anti-kickback” Act
  • Contract Work Hours and Safety Standards Act
  • McNamara — O’Hara Service Contract Act
  • The Federal Wage Garnishment Law — Title III of the Consumer Credit Protection Act
  • Immigration and Nationality Act
  • Employee Polygraph Protection Act
  • The Migrant and Seasonal Agricultural Worker Protection Act

PLAN/PREVENT/PROTECT

On July 3, 2013, the entirety of the Labor Department’s regulatory agenda and regulatory plan statement was made available to the public online at www.regulations.gov.   The regulatory agenda is a listing of all the regulations the Department of Labor expects to have under active consideration for promulgation, proposal, or review during the coming 6- to 12-month period.  As explained in the Regulatory Agenda, “employers and other regulated entities must take responsibility to find and fix problems rather than wait for a Labor Department investigator to inspect, discover the problems, and enforce the law.”  In practice, this will mean that employers will need to take specific concrete steps to prevent violations of law before they occur, and any failure to take such steps could itself constitute a violation.  The idea is for employers to find and fix violations before an investigator arrives at the workplace.  The labor department says the regulations it is pursuing in 2014 are part of a plan/prevent/protect approach, “designed to ensure employers and other regulated entities are in full compliance with the law every day, not just when the Department of Labor engages an employer.”

The DOL is emphasizing greater openness and transparency by giving employers, workers, and others greater access to information concerning workplace conditions and expectations. The goal, says the department, is for compliance to become a more cooperative exercise.

The Department in the original 2010 release of P3 proposed these P3 initiatives:

Plan:  Create a plan for identifying and remediating risks of legal violations and 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 implement the plan in a manner that prevents legal violations.  The plan cannot be a mere paper process.  This should 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 would 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.

DOL regulatory initiatives include:

Injury and Illness Prevention Program (OSHA):  Requiring employers to implement Injury and Illness Prevention Programs.

Infectious Diseases (OSHA):  A request for information on infectious diseases to better assess the extent of problems and better understand ways to protect healthcare workers.

Pattern of Violations (MSHA):  Development of a final rule to revise the regulations on patterns of violations.

Final Rule on Section 503 of the Rehabilitation Act of 1973 (OFCCP):  Effective March 24, 2014, the final rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire individuals with disabilities, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

Final Rule on Vietnam Era Veterans’ Readjustment Assistance Act, as amended (VEVRAA) (OFCCP):  Effective March 24, 2014, the final rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire protected veterans and improve job opportunities for protected veterans.

Federal Construction Contractor Affirmative Action Requirements (OFCCP): Issuance of an affirmative action rule by April 2014 for construction contractors to address outdated affirmative action goals and timetables for the construction industry and strengthen affirmative action programs particularly in the areas of recruitment, training, and apprenticeships.

Federal Contractor Affirmative Action Requirements (OFCCP): Issuance of proposed rules revising sex-discrimination guidelines for federal contractors and subcontractors; and

Development in 2014 of a new Compensation Data-Collection Tool to “identify contractors likely to violate” OFCCP’s laws and for OFCCP’s “establishment-specific, contractor-wide, and industry-wide analyses.”

“Audit, Audit, Audit”:  Most experts agree, the answer to P3 is to audit all areas which may be investigated by the DOL.  With respect to federal wage-and-hour laws, “Plan, Prevent, Protect” would likely require employers to perform a variety of proactive functions, including:

  1. Analyzing and documenting each job position classified as “exempt” or as an            “independent contractor,” in collaboration with the individual workers holding those      jobs and the work or services performed;
  2. Disclosing the analysis to individual workers;
  3. Retaining the analysis to provide to the DOL’s Wage and Hour Division; and
  4. Conducting management training sessions to ensure that managers understand the differences between exempt employees, non-exempt employees, and independent contractors.

Similarly, with respect to workplace safety, “Plan, Prevent and Protect” would obligate an employer to:

  1. Audit safety and health information and records;
  2. Develop procedures for inspecting the workplace for hazards;
  3. Develop written plans (perhaps in conjunction with workers) to improve safety;
  4. Disclose the plans to workers so they can monitor compliance;
  5. Continually evaluate the success of those plans; and
  6. Create an Injury and Illness Prevention Program (“IIPP”).

And in case you missed it, on January 17, 2014, President Obama signed into law the Consolidated Appropriations Act, 2014, H.R.3547, which will provide funding for the Occupational Safety and Health Administration for the 2014 fiscal year.  By rating the complexity of an inspection, OSHA compliance officers and Area Offices will be focusing time and effort on “more complex inspections,” such as Process Safety Management (PSM) facilities and health inspections such as bloodborne pathogen, respiratory protection, and other hazards.  The Consolidated Appropriations Act increases OSHA’s funding above the 2013 sequestered spending limits to $552.2 million.  While several compliance assistance programs are being cut, OSHA’s enforcement activities will receive $207.8 million — the full amount asked for by the White House.  Accordingly, employers should continue to expect a high OSHA emphasis on enforcement inspections in 2014.

Stephen Burt