DOL to replace "catch me if you can" with Plan/PreventDOL to replace "catch me if you can" with Plan/Prevent/Protect

The Department of Labor (DOL) has announced that they are going to replace "catch me if you can" with "Plan/Prevent/Protect." 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. This is the heart of the Labor Department's new strategy." The DOL has acknowledged that many employers already have a culture of compliance. However, the DOL has also stated that "..there are other employers and enterprises regulated by the Labor Department that do not have a culture of compliance and will not change their behavior even if provided with the best information. Some are complacent and depend upon luck or happenstance to avoid workplace violations. Still others make a calculated decision whether to comply with employment laws. They assess the benefits of refusing to comply with the law and compare them to the costs of complying with the law. Then they weigh these costs and benefits against the likelihood they will be caught and the penalty they might suffer if they are caught. This is the "catch me if you can" system in action. And for far too many employers and others subject to the laws enforced by the Labor Department, this cold economic calculus leads them to violate the law."

According to the DOL, in helping workers get and keep good jobs, the DOL must enforce dozens of employment laws, including the Fair Labor Standards Act (FLSA), the Occupational Safety and Health Act (OSHA), and the Employee Retirement Income Security Act (ERISA), among others. Specifics of the DOL's new strategy will not be known until the new regulations are drafted and proposed. However, it seems certain that employers will face greater enforcement scrutiny and penalites. For example, the DOL has announced that, "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.
This bulletin provides a general summary of recent legal developments. It is not intended to be and should not be relied upon as legal advice.

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