Proposed Regulations Implementing Executive Order 13673 ...files.ctctcdn.com/8e114e49001/7d8cca65-a0e4-4e3d-a97a-b7a381532321.pdf• Department of Labor Guidance issued for E.O. 13673

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Proposed Regulations Implementing

Executive Order 13673,"Fair Pay and Safe Workplaces"

Stephen M. Seeger

1755 L Street, NW

Suite 750

Washington, D.C. 20036

(202) 293-8815

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Fair Pay and Safe Workplaces Executive Order

• As part of his "Year of Action", on July 31, 2014, President Obama signed Executive Order 13673, the "Fair Pay and Safe Workplaces" for the stated purpose of cracking down on federal contractors who put workers’ safety and hard-earned pay at risk.

• Require prospective federal contractors on all new federal procurement contracts valued at more than $500,000 to disclose labor law violations and give agencies more guidance on how to consider labor violations when awarding federal contracts.

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Fair Pay and Safe Workplaces Regulations

• On May 28, 2015, the Department of Defense, General Services Administration and National Aeronautics and Space Administration issued proposed amendments to the Federal Acquisition Regulations (FAR) implementing the Fair Pay and Safe Workplaces Executive Order.

• Written comments on the proposed regulations are due on or before July 27, 2015.

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• Requires prospective contractors to disclose labor law violations by contractor and its subcontractors from the past three years.

• Contractors complete an annual representation and certification in the System for Award Management (SAM) and certify in response to each solicitation that the SAM representations are current.

• If awarded the contract, the bidder must update information every six (6) months.

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Reportable Violations:

• The Fair Labor Standards Act;

• The Occupational Safety and Health Act of 1970;

• The Migrant and Seasonal Agricultural Worker Protection Act;

• The National Labor Relations Act;

• The Davis-Bacon Act;

• The Service Contract Act;

• Executive Order 11246 (Equal Employment Opportunity);

• Section 503 of the Rehabilitation Act of 1973;

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Reportable Violations cont.:

• Section 503 of the Rehabilitation Act of 1973;

• The Vietnam Era Veterans Readjustment Assistance Act of 1974;

• The Family and Medical Leave Act;

• Title VII of the Civil Rights Act of 1964;

• The Americans with Disabilities Act of 1990;

• The Age Discrimination in Employment Act of 1967;

• Executive Order 13658 (Minimum Wage for Contractors); and

• Equivalent State laws as defined by the Department of Labor –other than OSHA approved state plans, other state law equivalent laws is deferred pending guidance from the DOL.

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• Basic information about the labor violations will be made publicly available in the Federal Awardee Performance and Integrity Information System (FAPIIS).

• The government is also developing a website for reporting labor law violations under the new regulations.

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What is a Violation:

• An administrative merits determination is a notice or finding of an enforcement agency following an investigation. It may be final or it may be subject to appeal or further review.

• An arbitral award or decision is an arbitrator or arbitral panel determination that a labor law violation has occurred, or that enjoined or restrained a violation, including determinations that are not final or are subject to being confirmed, modified, or vacated by a court and including determinations resulting from private or confidential proceedings.

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What is a Violation, cont.:

• A civil judgment is a judgment or order issued by a federal or state in court determining that a labor law violation occurred or enjoining or restraining a violation, including those that are not final or are subject to appeal. Summary judgment decisions and or injunction decisions are included in this category.

• Even determinations, awards, decisions or judgments that are subject to appeal or further review must be reported by contractors.

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Evaluation of Violations:

• Department of Labor Guidance issued for E.O. 13673 and proposed Regulations identify violations as "serious", "repeated" "willful" or "pervasive".

• Creates Agency Labor Compliance Advisor position in each agency to provide consistent guidance as to whether violations rise to level of lack of business integrity or ethics.

• Factors considered include the number of violations, whether the contractor initiated remedial actions, whether the violation was self-reported, and whether it entered into labor compliance agreement (and is abiding by it).

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• Prior to making a contract award, Contracting Officers must consider the violations in assessing the offeror's integrity and business ethics and if the violations render the offeror non-responsible and thus ineligible for award of the contract.

• Before it makes any non-responsibility determination, the Contracting Officer must give the bidder an opportunity to disclose any steps the bidder has taken to correct the violations and/or improve its compliance with the labor laws.

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At contract execution, the Contractor must represent to the Contracting Officer for any subcontract with an estimated value of $500,000 (except commercially available off-the-shelf items) that the Contractor:

• Will require each subcontractor to disclose any administrative merits determination, arbitral award or decision, or civil judgment rendered against the subcontractor within the preceding 3-year period for labor law violations, and update the information every 6 months; and

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Contractor representations, cont.:

• Before awarding a subcontract, will consider the information submitted by the subcontractor in determining whether a subcontractor is a responsible subcontractor with a satisfactory record of integrity and business ethics.

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Contractor Post-Award Representations:

• Semi-annual reporting of violations on behalf of Contractor and its subcontractors and that all prior disclosures are current and accurate.

• Contracting Officer shall consider post-award information and either: 1) take no action; 2) report the matter to the DOL for action; 3) refuse to exercise any options remaining; 4) terminate the contract for default, and/or; 5) notify the agency Suspending and Debarring Official of the violations.

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• The Executive Order also requires each federal agency to designate a senior agency official to be the agency’s Labor Compliance Advisor. Among other things, the Labor Compliance Advisor will assist contracting officers in reviewing bidders’ disclosures and providing guidance on whether the bidders’ violations are so egregious to rise to the level of a lack of integrity or business ethics.

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• The Executive Order also requires Contractors to give their employees accurate information on a pay stub or wage statement every pay period regarding hours worked, overtime hours, pay, and any additions to or deductions made from their pay, so employees can verify that they are being paid the correct amount.

• Contractors must provide a document to any individual treated as an independent contractor a written statement confirming their status as an independent contractor.

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• The Executive Order also prohibits Contractors with federal contracts of $1 million or more from requiring workers to sign arbitration agreements for disputes related to alleged violations of Title VII of the Civil Rights Act or from sexual assault or harassment violations.

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Issues Highlighted for Public Comment:

• Burden on Small Businesses

• Scope of documents subject to public disclosure

• Use of technology to maximize efficiency

• Flowdown requirements to subcontractors

• Requirements for recordkeeping

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Title of Slide

• Written comments on the proposed regulations are due on or before July 27, 2015.

• https://federalregister.gov/a/2015-12560

THE END

https://federalregister.gov/a/2015-12560

Documents

Proposed Regulations Implementing Executive Order 13673 ...files.ctctcdn.com/8e114e49001/7d8cca65-a0e4-4e3d-a97a-b7a381532321.pdf• Department of Labor Guidance issued for E.O. 13673