A Message from our HR Department- Plan/Prevent/Protect
With spring around the corner it has been on our mind here in the Seltzer HR and Benefits Department that the government’s newly touted “Plan, Prevent, and Protect” enforcement is supposed to be rolled out!
Will we suddenly see a rush of surprise government audits? Will we start seeing reporting requirements? Are we required to create an actual written plan as an employer?
None of this is clear but we can say to be ready as the government’s expectations of employers is changing and should a surprise audit, or one triggered by an employee complaint occur, no longer may they accept the “we didn’t know” answer – they are saying very clearly you are expected to know! One would assume this means even stiffer penalties and of course increased policing.
If you are not clear on areas like FMLA, FLSA, COBRA, ERISA, I9 (just to name a few) please be sure to let us know so we can help you. If you are aware, and have been making a business decision to take a risk, you may want to evaluate that decision sooner than later.
Direct from the Department of Labor website for your reading pleasure:
Leveraging Limited Resources to Increase Compliance: “Plan/Prevent/Protect”
Employers and others must “find and fix” violations — that is, assure compliance — before a Labor Department investigator arrives at the workplace. Employers and others in the Department’s regulated communities must understand that the burden is on them to obey the law, not on the Labor Department to catch them violating the law. This is the heart of the Labor Department’s new strategy.
We are going to replace “catch me if you can” with “Plan/Prevent/Protect.”
In 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.
Historically, worker protection agencies at the Department of Labor, most notably the Office of Federal Contract Compliance Programs (OFCCP) and the Mine Safety and Health Administration (MSHA), have developed compliance programs targeted at specific workplace risks and hazards. For example, employers and others implementing Executive Order 11246’s anti-discrimination and affirmative action requirements are required to create programs for diverse workplaces under OFCCP’s existing regulations. The Mine Act requires unique mine plans for ventilation and dust control, among others. The Department’s latest Regulatory Agenda contains new regulations, discussed in greater detail below that will require employers and other regulated entities to improve the content, implementation, and evaluation of these existing, hazard-specific protection plans and programs. But it also proposes new rules in new areas based on the same philosophy.
“Plan/Prevent/Protect” marks an expansion of these kinds of requirements to more worker protection efforts in the Labor Department. In this Regulatory Agenda, the Occupational Safety and Health Administration (OSHA), MSHA, OFCCP, and the Wage and Hour Division (WHD) will propose regulatory actions that require employers and others to develop programs to address certain employment law compliance issues within each agency’s portfolio. Although the specifics will vary by law, industry and regulated enterprise, this “Plan/Prevent/Protect” strategy will require all regulated entities to take three steps to ensure safe and secure workplaces and compliance with the law:
- “Plan”: The Department will propose a requirement that employers and other regulated entities create a plan for identifying and remediating risks of legal violations and other risks to workers — for example, a plan to search their workplaces for safety hazards that might injure or kill workers. The employer or other regulated entity would provide their employees with 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“: The Department will propose a requirement that employers and other regulated entities thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer or other regulated entity cannot draft a plan and then put it on a shelf. The plan must be fully implemented for the employer to comply with the “Plan/Prevent/Protect” compliance strategy.
- “Protect“: The Department will propose a requirement that the employer or other regulated entity ensures that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.
Employers and other regulated entities who fail to take these steps to address comprehensively the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, depending upon the agency and the substantive law it is enforcing, subject to remedial action. But employers, unions, and others who follow the Department’s “Plan/Prevent/Protect” strategy will assure compliance with employment laws before Labor Department enforcement personnel arrive at their doorsteps. Most important, they will assure that workers get the safe, healthy, diverse, family-friendly, and fair workplaces they deserve.
The Seltzer Group with locations in Schuylkill Haven, Orwigsburg, and Pottsville, Pennsylvania, serves businesses and individuals locally, regionally, and on the national level. The Seltzer Group is a proud member of the Keystone Insurers Group.