By: Michael J. Neary
Lerch, Early & Brewer's Legal Update
In a troubling development for businesses of all sizes, Seth Harris, the United States Deputy Secretary of Labor, announced recently that the Department of Labor is working on regulations that would place the burden on employers to affirmatively demonstrate compliance with many of the nation’s labor and employment laws. Any such regulations would constitute a fundamental shift in the way that the federal government enforces laws governing the workplace.
Currently, businesses operate freely within the confines of the nation’s employment and labor laws. Businesses, for the most part, do not have to demonstrate that their employment policies comply with the government’s laws until after an allegation of wrongdoing arises. According to Mr. Harris, the new regulations, which the Department of Labor is still drafting, would require businesses to prove to the government their compliance with certain labor and employment laws.
Apparently, the Department is designing this new regulatory framework to foster a culture of cooperation amongst business and government regulators. By way of example, Mr. Harris suggested that the regulations would require businesses to prepare a written justification for a decision to classify a worker as an independent contractor. Businesses would have to share the justification documentation with the employee and the government. Regarding workplace safety and health laws, Mr. Harris suggested that the regulations would require businesses to prepare plans to avoid safety risks, implement those plans, and continuously monitor their plans once implemented to ensure that they are effective in reducing workplace hazards. The regulations would require businesses to report to the government at each stage of this process.
Assuming the Department implements these regulations, businesses will have to spend a significant amount of time and resources creating documentation to affirmatively prove that policies affected by the regulations comply with the law. The Department hopes that this new approach will end what it perceives as a “catch-me if you can” mentality to the enforcement of labor and employment laws. Mr. Harris suggested that the new regulations are necessary because the Department of Labor does not have the resources necessary to affirmatively monitor all employers. No matter what the justification, this new approach would create significant new burdens for business.
The vast majority of businesses strive in good faith to comply with the labor and employment laws. Mr. Harris acknowledged this fact in his recent discussion of the new regulations. Consequently, it is a bit troubling that the Department of Labor would place new burdens on the majority of law abiding businesses to stop the few bad actors out there. Our Employment and Labor group will follow the Department’s ongoing regulatory process closely, and we will keep you informed of any new regulatory developments. In the meantime, we are happy to discuss with all of you ways that you can influence this regulatory process to minimize the burden that any new regulations will place on your businesses.
Mike Neary represents employers in the litigation and resolution of employment-related disputes. To learn how these new regulations may affect your business, contact Mike at mjneary@lerchearly.com or 301-657-0740.
This article originally appeared in Lerch, Early & Brewer's Legal Update, 2010, Vol. III. It is for your information only and is not intended to constitute legal advice. Please contact your attorney for more information.
Copyright 2010 by Lerch, Early & Brewer, Chtd.
