Ask the Experts: DOL P3 Initiative

Question: What is the Department of Labor’s P3 Initiative, and what must employers do regarding this initiative to be compliant?

Answer: The federal Department of Labor (DOL) created the P3 Initiative in the spring of 2010 (the three P’s being “Plan, Prevent, Protect”). The initiative is a set of federal regulations designed to require all U.S. businesses to proactively demonstrate their compliance with wage laws, antidiscrimination laws, and safety laws. The initiative is intended to required employers to “take full ownership” over compliance with DOL requirements every day, not just when the DOL is conducting audits, and to promote transparency when it comes to the health and safety of employees.

Currently P3 remains a strategic enforcement initiative without action, but remains an initiative for continued discussion and future action. Our understanding is that while the DOL has expanded its resources for conducting audits, it has faced some challenges in enforcing the P3 initiatives as originally intended. The bottom line is that employers should review their business practices for complying with applicable wage and hour laws, antidiscrimination laws, and safety laws to ensure that if/when the DOL selects the organization to audit, the company is able to pass the audit with no violations.

Under the P3 Initiative, employers must “find and fix” violations of wage and hour, discrimination, and safety matters before a DOL investigator arrives at the workplace. The burden is on the employer to obey the law, not the DOL to “catch” employers violating the law. The DOL assigned several of its agencies — specifically the Occupational Safety and Health Administration (OSHA), the DOL’s Wage and Hour Division (WHD) and the Office of Federal Contract Compliance Programs (OFCCP) with proposing regulatory actions that will require employers and other regulated entities to take the following three steps to ensure safe and secure workplaces and compliance with the law:

  1. Plan: The Department of Labor will propose a requirement that employers and other regulated entities create a plan for identifying and remediating risks of legal violations and other risks to workers — for example, a plan to search their workplaces for safety hazards that might injure or kill workers. The employer or other regulated entity would provide their employees with opportunities to participate in the creation of the plans. In addition, the plans would be made available to workers so they can fully understand them and help to monitor their implementation.
  1. Prevent: The Department of Labor will propose a requirement that employers and other regulated entities thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer or other regulated entity cannot draft a plan and then put it on a shelf. The plan must be fully implemented for the employer to comply with the “Plan/Prevent/Protect” compliance strategy.
  1. Protect: The Department of Labor will propose a requirement that the employer or other regulated entity ensures that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.

Despite the current state of the P3 initiative, employers and other regulated entities who fail to take these steps to address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and therefore should take appropriate steps under the initiative to avoid being subject to remedial action, depending upon the agency and the substantive law it is enforcing. Employers are wise to take these steps now to be compliant with P3 if/when the initiative goes into full action.