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HR Magazine: Easing the Road to Compliance

Margaret M. Clark  9/1/2003

HR Magazine, September 2003
Vol. 48, No. 9

Barbara Bingham, DOL's compliance assistance policy chief, tells employers how to get straight to the source for reliable information.

n November 2002, Barbara Bingham was named director of the newly formed Office of Compliance Assistance Policy at the U.S. Department of Labor (DOL). Secretary of Labor Elaine Chao created the office as part of her compliance assistance initiative, which aims to help employers safely traverse what she termed a “regulatory jungle” in a June 2002 speech.

The job may be new, but Bingham is no rookie. A 28-year veteran at DOL, Bingham most recently was acting director of regulatory policy in the Office of the Assistant Secretary for Policy, where she advised on key policy issues. She managed the department’s central policy-making body and led the department’s first push to put its statutory, regulatory and compliance assistance information online.

Chao has put compliance assistance high on her priority list, and Bingham’s job is to make that happen within the department and among its many enforcement agencies. Key is getting the word out to employers about the department’s many resources and inspiring user confidence in their value.

Recently, Bingham talked with HR Magazine Senior Legal Editor Margaret M. Clark about her office’s goals and challenges and explained how HR professionals can get authoritative answers to their compliance questions.

HR Magazine: When Secretary Chao announced the creation of your office, she talked about a culture change at the DOL—one that embraces the department’s responsibility to communicate clearly with employers. What steps have you taken to retool people’s thinking along those lines?

Bingham: We’ve just started. We have a compliance assistance liaison group that has members from the major agencies in the department. We’re working on doing some internal education. We’re going to have an internal summit in September to bring all the agencies together, jump-start the process and spread the word about what we’re up to.

HR Magazine: So, your mission includes spreading the message internally as well as externally?

Bingham: Absolutely. We see it as two-fold: One is to educate the public, and the other is to help the compliance folks in the department do their jobs better by learning more about what one another does.

HR Magazine: Do you see any challenges in connection with changing staff mindsets?

Bingham: The agencies are very much committed to compliance assistance. They have always done it. It’s just a matter of emphasis, focusing more and coming up with new ideas and cooperative efforts. It’s putting compliance assistance on the same footing as enforcement and training, and all the other technical assistance things they do.

The biggest challenges I find are communicating with all our district and regional offices across all the agencies and increasing their understanding of the benefits of working together as one department.

HR Magazine: Specifically, what will your office do to help employers be in compliance with the laws enforced by DOL? What are your priorities for the next 12 to 18 months?

Bingham: As I mentioned, our major goal is to educate the department’s employees and the public on what DOL does and where to go for help. I use that over and over again, but it really sums up what we’re about. We will train our front-line staff so they can better refer questions to other agencies. They won’t be experts on other agencies’ laws, but they’ll know where to send people—both inside and outside the department—when they have questions.

We’re also making a major new effort to reach out to the regulated community. All of our wonderful compliance assistance tools do no good if no one knows about them. We’re putting the finishing touches on a communications plan that will help us do a better job of reaching out to the public. Specific plans include working with organizations like yours to get the word out to employers on where they can go for help.

HR Magazine: What tools—such as elaws Advisors—are available to help employers be in compliance?

Bingham: We have always used the Internet. We realize that it’s a great way for us to reach many, many people. They can get our compliance assistance information 24 hours a day, seven days a week. Elaws—employment laws assistance for workers and small businesses—of course is one of our premier compliance assistance tools available at www.dol.gov/elaws. We have over 20 Advisors. We’re continuing to work on new ones. We plan on doing that as long as there are new rules or laws that need explaining.

The newest one is our FirstStep Employment Law Advisor. We think this is probably going to be our most popular one as soon as we get the word out on it. It’s designed particularly for small businesses. Right now, they have a problem if they don’t know whether or not our laws cover them. We’ve got lots of information, but they don’t know which laws apply to them. That’s what this Advisor does. After users answer a few questions, the Advisor will tell them which of our main laws apply to their business and link directly to the compliance assistance information.

We’re probably going to be working on things like [e-mail list services] so people can actually get e-mail news and information from us. Some of our agencies—OSHA [the Occupational Safety and Health Administration] for instance—already do that.

Last April the print version of the newly updated Employment Law Guide became available in both English and Spanish. This is available free to the public through the department’s national toll-free call center—1-866-4-USA-DOL—and on the web under the compliance assistance portal located at www.dol.gov/compliance. The Employment Law Guide is written in plain language and provides introductory information on the major statutes and regulations administered by DOL that affect businesses and workers.

HR Magazine: Do you have anything specifically in the works in anticipation of the revised regulations defining the white-collar exemptions to the Fair Labor Standards Act?

Bingham: Yes, actually. We have talked with wage and hour administrator Tammy McCutchen, and we are probably going to be working on elaws Advisors specifically for each of the major sections of the final rule. We hope to be able to work on them simultaneously with the rulemaking proceeding, so when regulations go into effect we’ll have the Advisors ready.

HR Magazine: What resources are at your disposal to accomplish the many goals that you have discussed?

Bingham: My staff is small, but I do have additional resources to help with our outreach and marketing efforts—printing and translating publications, creating training materials and things of that sort.

The greatest resources we have are the agencies themselves.

They’ve been doing a good job of compliance assistance, but we realized we could do a much better job if we work together supporting each other’s efforts. I work very closely with all our enforcement agencies, and with the Office of Public Affairs and the Office of Public Liaison. By working together, we’re going to be able to leverage the resources they have, as well as what I have, to reach out and inform the public about what we do.

HR Magazine: What steps would you advise employers to take to get answers to questions about whether a certain practice is in compliance with a law enforced by DOL?

Bingham: If they’re unsure of what agency in the department enforces the law, I would suggest they call 1-866-4-USA-DOL, our toll-free national call center. They will be directed to the appropriate agency and to compliance assistance tools covering that law. If they have access to the Internet, they may wish to go to www.dol.gov/compliance, which is where we have basic information on all our major laws, agency contact information and links to our elaws Advisors. It’s probably the best starting place for folks.

HR Magazine: What’s the next step after they’ve reached the right agency or have found the relevant material on the Internet, but still don’t feel they have a precise answer to their question?

Bingham: We usually recommend that folks call the closest district or regional office for the agency that enforces the particular law; they’re all very good about putting contact information on the web. Or, the call center will direct them to the nearest appropriate office. Talking to a person sometimes is what you need, and each one of the agencies has people who will be able to answer employers’ questions.

HR Magazine: How do HR professionals know they are getting authoritative answers—not just information on a topic—as to whether particular practices are or are not in compliance with the law?

Bingham: The public, HR professionals and business folks can rely on all of our basic compliance assistance information on the web and our printed plain language guides. These materials go through a very rigorous review and quality assurance process, including a final review by the Solicitor of Labor’s office. All of our elaws Advisors, for example, are carefully reviewed for accuracy and are authoritative.

For those situations not covered by our compliance assistance materials or our Advisors, I would recommend calling the call center, once again, to get a referral to the appropriate agency and to other compliance assistance information. For special cases, it may be advisable to write the head of the relevant DOL agency to get a written answer on the specific practice in question.

HR Magazine: I’ve heard it said among our members and among employment lawyers that officials in the various regional offices may apply different interpretations of the department’s statutes or regulations. What steps is your office taking to ensure that constituents get consistent responses when they go to the regions?

Bingham: All of our enforcement agencies and I believe we should provide consistent interpretations of our rules, no matter who you ask or what compliance assistance materials you use. One of the goals of our office is to ensure that accurate, timely, consistent information is available to the regulated community. We are taking some constructive steps to make this happen. For example, the same list of frequently asked questions (FAQ) that is on the Wage and Hour Division’s web site is also used by our call center CSRs [customer service representatives], so you will get the same answer. We hope to expand the database of FAQs so they can be used for e-mail responses and for letters as well. But we do have a lot of work to do in this area. We’re not doing as good a job as we probably could.

HR Magazine: Secretary Chao has said that enforcement and compliance assistance should be separate functions with a firewall between them to ensure that calls for help are never treated as tips for enforcement. What steps have been taken to ensure that this firewall actually is in place?

Bingham: Our agencies have been very careful about treating calls for compliance assistance as confidential. But to make sure that the policies are uniform and to emphasize how important this is, we have drafted a new confidentiality protocol for compliance assistance inquiries.

HR Magazine: If an HR professional has a less-than-satisfactory experience in getting the needed information and answers, what should that person do next?

Bingham: All our agency heads and our managers are committed to being responsive to requests for assistance. If staff in a district or local office has not been helpful to a caller, I would suggest that the individual contact the regional director of that agency. They’re all listed on the web. If that phone call does not lead to a resolution, she could contact me and I will talk with the agency.

HR Magazine: How would the person do that?

Bingham: If after contacting the appropriate DOL regional administrator, an HR manager is still concerned about how compliance assistance is being provided by a DOL agency, he or she can contact my office by using our compliance web pages. On all www.dol.gov/compliance pages, there is a “contact us” button. From the “contact us” page, if they select “Compliance Assistance Questions” under “e-mail,” any e-mails concerning problems with compliance assistance will be forwarded to my office and brought to my attention.

HR Magazine: How do you plan to reach those employers that are uneducated about their legal obligations to workers—employers that should be asking questions but aren’t?

Bingham: This is where our outreach to professional organizations like SHRM is so important. We know that businesses look to you for guidance. Through yours and other organizations’ conferences, newsletters and web sites, we can reach out to thousands of businesses we would not otherwise be able to contact. Also, as part of our communications plan we use newspapers and other media to get basic information out to the public on what DOL does and how to contact us.

HR Magazine: What measures are in place to evaluate the effectiveness of compliance assistance tools and techniques?

Bingham: The department and some of our agencies have started assessing various compliance assistance strategies and tools. For example, DOL’s Wage and Hour Division is currently working with an independent contractor to design and pilot a measurement study that will help assess the effectiveness of the agency’s YouthRules! compliance assistance materials. This first pilot will attempt to determine if employers were aware of the YouthRules! materials and if they had an impact on employer behavior.

The Employee Benefits Security Administration, one of DOL’s agencies, is also evaluating the effectiveness of its small business seminars on pension plans. In addition, they have started evaluating the health benefits outreach they do along with the states, the Internal Revenue Service and the Department of Health and Human Services.

Our own office also has two evaluations planned for this year, one on our web site’s compliance assistance portal and the other on elaws. We recognize the importance of assessing our tools and techniques so we can concentrate our resources on those that work best. We also appreciate the feedback we get from those who use our tools. That’s one of the reasons we find exhibiting at SHRM conferences so important to us. We can talk directly to those who have used our tools. We also encourage your readers to let us know what is working and what is not. Again, they can do that by sending an e-mail from the “contact us” link on the main compliance assistance web page at www.dol.gov/compliance.

HR Magazine: What is your role in connection with the individual agencies’ compliance assistance strategies?

Bingham: Each of our agencies has presented a compliance assistance plan to our Policy Planning Board. Our policy office staff, including myself, reviews the plans before they go to the board. We work with the agencies to make any needed changes to their plans, and the board itself often has requests for changes. Agency heads have been very receptive to new ideas from the policy office and from other board members. We’re also working with the agencies to provide additional support as they implement their plans.

HR Magazine: Many of your initiatives are specifically targeted at small employers. Does your office have a role in working with the multi-state or even multi-national employer to meet any currently unmet need?

Bingham: The reason we’ve been focusing on smaller businesses is that we believe those are the people who are less likely to know where to go for help. The larger corporations have their own HR staffs. They have their own legal staff, accounting staff—people who know how to set up pension plans, know what the rules are. To the extent that larger employers came to us and there was something in particular that they wanted, we would certainly work with them. We see them more as allies or partners to help us get out the word to all of their franchises, for example—people down the chain from the national office.

HR Magazine: What is your biggest challenge?

Bingham: I think our biggest challenge is just communicating. There’s a lot going on in the department. Compliance assistance is one of the highest priorities but there are a lot of other things going on too. So we have to find a good way to communicate among the agencies themselves across the department. We have a lot of stakeholders right here in this building. We’ve got our public affairs people, our public liaison people, people who do marketing. That’s a lot of people to talk to.

That’s internally. Externally, of course, is the fact that there are hundreds of millions of workers and businesses out there, and my staff certainly can’t reach all of them. So we need to rely on organizations like yours—third-party people who are trusted to try to get the word out that we’ve got some good things for them to look at.

Margaret M. Clark, J.D., SPHR, is senior legal editor for HR Magazine.

 

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