“We have had a dramatic shift from the previous administration. There has been a profound change in attitude toward workers’ rights so that now the government can actually protect workers,” Center for American Progress Chief Operating Officer Neera Tanden said in her opening remarks at a CAP event April 29 on the new Department of Labor regulations that aim to change the culture of workplace protection compliance.
The DOL released a new regulatory agenda on April 26 to increase transparency, protect workers and responsible business owners, and prevent workplace violations such as inadequate safety protections, discrimination, minimum wage, and child labor violations. With this new strategy, the DOL is attempting to change the culture of compliance so that all employers and others in the department’s regulated communities understand that the burden is on them to obey the law—not on the DOL to catch them violating the law.
Deputy Secretary of Labor Seth Harris introduced the new strategy, termed “Plan, Prevent, Protect,” in his keynote address. The department is considering regulations that require employers to develop proactive plans for protecting their workers’ rights and safety. Employers would need to implement those plans, submit them to DOL enforcement agencies, and ensure that the plans do what they are designed to do.
While most responsible employers obey the law without government invention, some employers fail to understand workplace laws, Harris said. And the most irresponsible employers play a dangerous game of “catch me if you can,” making a calculated decision—weighing the cost of implementing worker protections against the cost and chances of getting caught violating the law—to determine whether to comply with workplace laws.
Following his address, Harris was joined on a panel by Assistant Secretary of Labor for Mine Safety and Health Joseph Main, Assistant Secretary of Labor for Occupational Safety and Health David Michaels, Deputy Administrator of the Wage and Hour Division Nancy Leppink, and Director of the Office of Federal Contract Compliance Patricia Shiu. Tanden moderated.
Workers too often pay the price for their employers’ noncompliance with labor law, which was the case in the Upper Big Branch mine disaster that killed 29 workers just weeks ago and brought the public’s focus back on mine safety. MSHA is focused on preventing future tragedies through more aggressive enforcement and new regulations that improve oversight of operators with patterns of bad behavior and ensure that coal mine examinations for safety and health violations occur before every oncoming shift check. It is also considering requiring mine operators to author comprehensive safety and health management programs, Main said.
But it’s not just mining workplaces that need to be safer. Michaels explained that every employer should have a safety and health plan because it makes medical sense. OSHA’s traditional use of safety standards for specific workplace dangers should be coupled with this holistic approach to health and safety because the DOL can’t get to every workplace or issue standards for every hazard. Further, workers must be involved in the planning process from the very beginning—not just after an injury or an accident occurs—in order for safety and health programs to be effective, Michaels added.
Employees must also be better informed about their rights in order to prevent workplace violations, Leppink said. A proposed DOL regulation could reduce one type of workplace fraud—where employers misclassify their employees as independent contractors to avoid paying the wages and benefits owed to workers as well as taxes—by educating workers about their rights. Employers would be required to inform workers whether they are classified as an employee or a contractor and how this decision is made in a timely manner, she said. This would prevent many employers from misclassifying their workers, and when workers are misclassified, give them important information to question their employment status.
The DOL will also consider regulations to enhance the effectiveness of the affirmative action requirements in the construction trades, and ensure that recruitment, training, and apprenticeships are used to promote diversity. This will level the playing field so that all people have an equal opportunity to work on federal construction contracts and facilitate the communication between federal contractors and workers, Shiu said.
Harris noted the DOL is also increasing employer records online as part of its enhanced enforcement strategy. This will enable workers to see who is or isn’t violating safety, health, equal employment, and wage laws.
DOL’s new enforcement and regulatory strategy represents a dramatic shift from the previous administration. It is important that DOL is getting serious about providing strong consequences for companies that break the law, but perhaps even more critical, the agency is focusing on proactive solutions that promise to prevent tragedies and violations before they occur.