Department of Labor Plans Include FLSA Compliance Procedures

October 4, 2010, 2:25 PM

The U.S. Department of Labor is preparing to issue new rules that would require employers to develop, implement, and evaluate the effectiveness of their plans to comply with the Fair Labor Standards Act. These planned mandates, which the DOL calls its "Plan/Prevent/Protect" strategy, would impose such requirements on employers separate and apart from any agency investigation.

According to this strategy, the DOL would also require employers to provide a copy of their compliance plans to employees and to retain copies for possible review by DOL Wage and Hour Division investigators. The DOL is pursuing this strategy to address its limited resources to investigate and enforce the employment laws under its purview. According to the DOL: "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. We are going to replace catch me if you can with 'Plan/Prevent/Protect.'"

One example that is sure to receive significant attention is DOL's planned revision to the FLSA's recordkeeping regulations that would require employers to conduct a classification analysis for each worker deemed not covered by the FLSA and to provide that analysis to the worker, as well as retain a copy for any potential investigation.

Employers will have the opportunity to provide input during the notice and comment period following DOL's issuance of the proposed recordkeeping rule, as well as following any other proposed regulatory measure issued as part of the Plan/Prevent/Protect strategy. --David J. Sullivan