Most employers out there are probably familiar with the reality program “Survivor.” And many of them probably feel as if that’s all they can do in today’s challenging labor and employment climate. In fact, ask a personnel manager what they do and you’re just as likely to hear him or her say “Outwit, Outplay, Outlast” than you are “hiring, firing and benefits.”

But what many employers may not know is that, while government agencies under the current administration have stepped up enforcement efforts across the board on everything from discrimination charges to wage and hour violations to occupational safety and health citations, they soon will be bringing their own form of “Survivor” to your workplace.

Sometime in the next 6 to 9 months, the United States Department of Labor plans to propose regulations which will mandate that covered employers develop and implement – then self-evaluate – plans for compliance with various administrative laws before the agency itself ever receives a complaint or undertakes an investigation of non-compliance.

In “Survivor”-like fashion, the Department calls this its “Plan/Prevent/Protect” strategy.

Essentially, employers will need to 1) come up with a plan that identifies and corrects the risk of legal violations; 2) implement their plan effectively; and 3) ensure that their plan is, in fact, protecting workers and eliminating violations of workplace rights. Undoubtedly, being required to follow such steps will impose meaningful burdens on employers because the requirements will increase costs and result in numerous other burdens, both recordkeeping and otherwise.

But perhaps the worst part of all – and something that may put some employers on the verge of “elimination” – is that the new initiative will require employers to consult their employees in developing the compliance plans and then actually provide their employees with a copy of them.

In doing so, employers may be giving employees nothing other than a virtual roadmap to a potential lawsuit.

Whenever the DOL’s proposed rulemaking on this process is issued, we recommend that employers seize upon the comment period to voice their concerns to the Department. If enough do so, the employer community may have a shot at avoiding some or all of the immensely onerous requirements and potentially dangerous consequences from this initiative.

Only then do employers stand a chance at winning “immunity.”

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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