On August 24, 2016, the federal government published the Federal Acquisition Regulatory Council's Final Rule and the Department of Labor's (DOL) Final Guidance implementing President Obama's July 2014 Fair Pay and Safe Workplaces Executive Order 13673. The Final Rule and Guidance imposes numerous and substantial burdens on federal contractors.
First, federal contractors, both prime contractors and subcontractors, bidding on new contracts with an estimated value of more than $500,000, must disclose any labor law decision rendered against them in the past three years, regardless of when the underlying conduct occurred. This reporting requirement has often been referred to as the "blacklisting" requirement. Federal contractors and subcontractors must disclose the adverse labor law decisions if they arose under the following 14 federal regulations and any equivalent state laws:
• Fair Labor Standards Act (FLSA);
• Occupational Safety and Health Act (OSHA);
• Migrant and Seasonal Agricultural Worker Protection Act;
• National Labor Relations Act (NLRA);
• Davis-Bacon Act;
• Service Contract Act;
• Executive Order 11246 (establishing EEO requirements for federal contractors);
• Section 503 of the Rehabilitation Act of 1973;
• Vietnam Era Veterans' Readjustment Assistance Act;
• Family and Medical Leave Act (FMLA);
• Title VII of the Civil Rights Act of 1964;
• Americans with Disabilities Act of 1990 (ADA);
• Age Discrimination in Employment Act of 1967 (ADEA); and
• Executive Order 13658 (establishing a minimum wage for contractors)
Contractors and subcontractors may also report mitigating factors, remedial measures and other steps taken to correct the violations. Contracting officers, with the assistance of their Agency Labor Compliance Advisor (ALCA) will evaluate the submitted information to determine if the contractor or subcontractor is eligible for a contract award.
Contracts and subcontracts exceeding $1 million will be prohibited from requiring mandatory pre-dispute arbitration for disputes arising out of Title VII of the Civil Rights Act or for torts related to sexual assault or harassment.
The new "blacklisting" requirements were scheduled to take effect October 25, 2016. However, on October 24, 2016, a federal Texas judge issued an injunction blocking enforcement of the "blacklisting" requirements pending further litigation. Please click here to see the injunction.
Please do not hesitate to contact any of the Labor and Employment attorneys with Coolidge Wall for any updates on the status of the "blacklisting" requirements or for any other additional information.