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P3 Compliance and Constructing Policies That Hold Up in Court

The Department of Labor tells us they are overwhelmed, understaffed and shifting additional burden to employers for employment law compliance. This can be a great deal for the average employer to undertake.  HRS has taken some time to prepare a quick “how to” blueprint for employers.

P3, also called “Plan/Prevent/Protect” or “P Cubed,” will require every entity covered by the FLSA, OSHA, OFCCP, and MSHA to make written plans ("Plan"), create processes ("Prevent"), and test the processes with designated compliance employees ("Protect").

The following guidelines create a simplified and sustainable P3 protocol:

 

1. Stay On Top of Changing Laws.

Review not only government postings, but also secure a 3rd party compliance expert as needed and for annual overview.  Our “overwhelmed” government states outright there is no government responsibility to educate employers.  Enforcement is their responsibility, however, and fundraising is high.  Case precedent law is just as impactful here as statutory law.  While it is necessary to be a member of the Bar to litigate or serve as “officer of the court,” it is not necessary to be a member of the Bar to be a legal compliance expert.  Full-time research commitment is essential for such expertise. 

2. Avoid Copycat or Adaptation of Other Employers’ Handbooks.

Beyond the immediate intellectual property law threats, other employers are not recognized as experts.  “Because Company X Did It” is not a reasonable defense. There are some terribly non-compliant practices circulating out there like “old wives’ tales.” Even policies that actually work for one company may not work for yours.

3. Build Legal Arguments from Day One.

Maintain records to prove either experts consulted on or approved your policies… or if self-constructed… save expert resources and statutory evidence as future “reasonable care” affirmative defense.  Use scenario planning to create and document activities which defend the company against complaint. “Willful violations” pose the greatest threat.  Negligence and lack of attention can be considered “willful” acts.

4. Protect Chain of Information.

Knowing what to keep and for how long as well as what not to keep are essential. Knowing who can have access and how to use this information without breaching privacy laws or risking discriminatory complaint are equally essential. 

5. Follow Policy Outcomes.

With the overuse of “cookie cutter” policies, many companies are unaware that better policy options exist.  Regardless of genesis for your policy, track outcomes to ensure it is working for you and not creating adverse impact or unlawful side effects.  Designate specific individuals with reasonable ongoing access, and empower them with job description authority to monitor policy success.

 

HRS offers extraordinary legal compliance expertise, P3 design services and further information on any topic herein. Consider an HR certification audit as proactive P3 compliance. ROI is exponential.


Jessica Ollenburg - Monday, January 23, 2012