By: Judge Ruth B. Kraft, Esq.
In 2011, the United States Department of Labor established a five year plan which set its regulatory agenda. Entitled "Plan/Prevent/Protect", it is premised on the notion that employers must find and fix violations before a DOL investigator arrives at the workplace. This squarely places the burden of compliance on the employer. How might a scrupulous employer understand that it isn't in compliance? Nearing the midpoint of the plan, we can now expect the use of rule making powers, which are reserved to executive branch agencies and do not require Congressional approval, to pursue these goals.
Under DOL's rubric, it is expected that the agency will propose rules requiring employers to design plans to find and fix any violations or risks, to implement those plans to prevent them and to assure that those plans really do protect workers. The Department is expected to use this agenda to propose new, expanded regulations under the Fair Labor Standards Act (FLSA). Currently, employers are required to post notices which explain employee's rights in general terms. Under the expected regulations, this will be broaded to require employers to explain how pay is computed and clarify whether workers are exempt or nonexempt. It is also anticipated that DOL may mandate that employers provide information justifying independent contractor classifications to workers not labeled as employees.
Scrutiny will continue to focus on Occupational Safety and Health Administration (OSHA) regulations to comport with this agenda. For example, employers may be required to implement an injury and illness prevention program which is process driven. Yes, there is no cure for the common cold but one might expect activities such as the use of hand sanitizers or creation of hand washing programs in a variety of spheres of industry extending well beyond the medical field.
Anticipated guidances on applicant screening/background checks, high school diploma requirements and blanket exclusion of unemployed job applicants will be issued by the EEOC in 2013 and all will reflect the dedication of additional federal resources toward enforcement activities. States have already jumped on the bandwagon as aggressive enforcement of regulatory standards is a lucrative method of income generation.
What all of this means for employers is that they cannot expect to maintain the status quo in the foreseeable future. Even organizations which pride themselves on compliance activities should be prepared to up the ante beginning in 2013. For those which have heretofore not created human resources compliance programs, now is the time to start by creating a comprehensive employee handbook and OSHA plan of action. Employers which have already taken those steps will need to insure that their plans are in accordance with new, burgeoning regulations. Understandably, in the current economic climate, there are economic barriers which mitigate against the ability to dedicate resources toward enhanced workplace compliance rather than business development mechanisms. However, the risks and costs of non-compliance should not be underestimated in the current enforcement environment.
For additional information on this topic or to set up a time for our firm to conduct a compliance assessment of your business, Jennifer Kirschenbaum at Jennifer@Kirschenbaumesq.com or (516) 747-6700 x. 302.