USDOL Regulatory Agenda: Plan/Prevent/Protect
Employers would be interested to review the USDOL’s regulatory agenda published in Spring 2010. In particular, employers should note the USDOL’s emphasis on proactive measures that the department would like to require employers to take before the USDOL investigator arrives. Indeed, the USDOL’s agenda marks the end of any regulatory tolerance for what the government calls a “catch me if you can” employer mentality. According to the USDOL, “[i]n various ways, employers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with achieving compliance. They will be required to implement these plans and evaluate their effectiveness in achieving compliance. While the Labor Department can be flexible about which path is chosen to achieve compliance, compliance will be non-negotiable under the ‘Plan/Prevent/Protect’ system.”
What about Wage and Hour? How will the Plan/Prevent/Protect agenda affect an employer’s Wage and Hour responsibilities? Good question. The USDOL has indicated that WHD will publish proposed rules which require employers to provide specific information to workers about how pay is calculated. In the event the employer believes that a particular position meets is exempt from the Fair Labor Standards Act requirement of overtime pay, the employer will 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.” Needless to say, this policy is a seismic shift in USDOL’s regulatory policy and would require the employer to take proactive, documented steps to ensure compliance and then retain that documentation for audit by WHD.
The USDOL’s comment on its new agenda can be found at: http://www.dol.gov/regulations/2010RegNarrative.htm