On September 29, 2016, the Department of Labor (“DOL”) issued regulations (the “final rule”) implementing Executive Order 13706, which requires federal contractors to provide paid sick leave to their employees. According to the DOL, federal contractors employ 1.15 million individuals—594,000 of whom do not receive paid sick leave. Thus, for contractors who do not currently provide paid sick leave to their employees, the final rule imposes significant administrative and financial burdens. Given the nuanced requirements of the final rule, however, even contractors who currently provide some form of paid sick leave to employees may find compliance with the final rule burdensome. Contractors should act now to either develop paid sick leave policies or determine what changes need to be made to their current paid leave policies to ensure they are in compliance with the final rule once it becomes effective.


Continue Reading Department of Labor Issues Final Rule Implementing Executive Order Requiring Paid Sick Leave for Employees of Federal Contractors

On August 25, 2016, the United States Department of Labor (“DOL”) and Federal Acquisition Regulatory (“FAR”) Councils published “Guidance for Executive Order 13673, ‘Fair Pay and Safe Workplaces’” (“final rule”).  See 81 Fed. Reg. 58562. Also referred to as the “blacklisting” rule, it imposes strict disclosure guidelines and requires that both prospective and existing contractors – as well as subcontractors – disclose violations of federal labor laws that resulted in administrative merits determinations, civil judgments, or arbitral awards or decisions.  The final rule also requires that contractors and subcontractors disclose specific information to workers each pay period regarding their wages and also prohibits contractors from requiring that their workers sign arbitration agreements that encompass Title VII violations and claims of sexual assault or harassment.
Continue Reading Agencies Publish Strict New Labor Reporting Guidelines for Government Contractors

By David Gallacher

On March 30, 2013, the U.S. District Court for the District of Columbia issued a decision imposing certain socio-economic contract requirements on subcontractors operating hospitals associated with the University of Pittsburgh Medical Centers. See UPMC Braddock, et al. v. Harris, Civ. 09-1210 (PLF) (D.D.C. Mar. 30, 2013) (“UPMC Braddock”). Even though the hospitals’ subcontracts did not include these socio-economic clauses, the court applied the age-old “Christian Doctrine,” which assumes that certain contract requirements reflecting a “significant or deeply ingrained strand of public procurement policy” will apply to a Government contract even if those requirements have been omitted from the text of the actual contract. See G.L. Christian & Associates v. United States, 312 F.2d 418, 426 (Ct. Cl. 1963). Even though no court has ever before held in the 50-year history of the Christian Doctrine that this legal rule applies to subcontractors (Christian and its progeny apply only to prime contractors doing business directly with the U.S. Government), the court has now radically expanded the doctrine.


Continue Reading Playing Cards With a Government That Stacks the Deck – D.C. District Court Radically Expands The “Christian Doctrine” To Subcontracts

By Nick Schnermann and Ryan Roberts

On July 14, 2011, the Office of Federal Contract Compliance Programs’ (“OFCCP”) proposed rule implementing Executive Order 11246 became final. See 41 C.F.R. 60-2.1(d)(4). The new rule updates the procedures whereby a contractor submits both initial and renewal applications to obtain OFCCP approval for its Functional Affirmative Action Program (“FAAP”). These revisions are the product of a year-long review of the OFCCP approval process. "The FAAP is back and is better than before" claims OFCCP director, Patricia Shiu. Contractors, however, may beg to differ.
 


Continue Reading OFCCP’s FAAP Rule Revision Places More Burdensome Requirements on Contractors

By Thaddeus McBride, Mark L. Jensen and Corey Phelps

Beginning on February 20, 2011, the U.S. Bureau of Citizenship and Immigration Services (“CIS”) assumed a role in the U.S. Government’s increasing regulation of technology exports. The new role for CIS relates to the transfer of controlled technology or source code, sometimes referred to as “deemed exports," to non-U.S. nationals.
 


Continue Reading Technology Exports: Uncertainty Around Form I-129 Persists

By W. Bruce Shirk and Nick Schnermann

The Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed two rules that would, among other things, enhance the agency’s investigative and enforcement capabilities and substantially increase the amount of EEO-related data it will collect from contractors. These proposals should come as no surprise – OFCCP’s publicly available budget submissions to Congress for FYs 2011 and 2012 set out detailed explanations of the agency’s long-term enforcement strategy.
 


Continue Reading OFCCP’s Proposed Equal Employment Opportunity Rules: More On-Site Investigations, More Data Collected From Contractors, Closer Scrutiny of Contractor Affirmative Action

By Richard Siegel

On March 1, 2011, the Supreme Court of Missouri issued a unanimous opinion holding that a contractor’s “care and maintenance” of the water storage tank and tower for the city of Monroe City, Missouri, was “construction” and thereby covered under the Missouri Prevailing Wage Act, Mo. Rev. Stat. §§ 290.210, et seq. (the “Act”).
 


Continue Reading Missouri Supreme Court Decision Provides Reminder Of Breadth Of Prevailing Wage Requirements On Construction Contracts

By Richard Siegel

Two recent policy changes announced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) likely will lead to a significantly greater number of and increased scope for investigations conducted by that Office into allegations of discrimination and pay disparity against Government contractors.
 


Continue Reading OFCCP Investigations Likely to Rise

By Michelle Sherman

“Loose tweets sink fleets” is a new twist on a familiar saying. It is also borrowed from the Navy Command Social Media Handbook issued October 15, 2010. The Navy appreciates that social media is widely used, and that a ban on social media is not the answer. Trying to turn a blind eye to the use of social media, or banning its use in the workplace is naive. Whether they are doing it at work or in their free time, people who hold security clearances, or have access to classified or sensitive information, are using Facebook to connect with friends who may be one to three degrees removed. They are connecting with other professionals on Linkedin, and sometimes tweeting about their every day activities on Twitter.
 


Continue Reading “Loose Tweets Sink Fleets” – What Government Contractors Should Include In Their Social Media Policy

By Sheldon M. Kline, Karin Hunter Johnson, and Ashley T. Hirano

Executive Order 13496 requires federal contractors and subcontractors to inform employees of their rights under federal labor laws. The Executive Order was signed at the end of 2009 and the Department of Labor (“DOL”) issued a final regulation implementing the Executive Order on May 20, 2010. The DOL regulation went into effect on June 21, 2010.  
 


Continue Reading New Employee Notification Requirements For Federal Contractors And Subcontractors

The Obama Administration is now planning yet another spending plan, this time in the form of a policy that actively encourages federal contractors either to increase the pay and benefits extended to their workforces, or to face an evaluative disadvantage in competing for federal contracts. This so-called “High Road Procurement Policy” includes an evaluative reward for “potential Federal contractors that pay wages or provide benefits above those required by our laws,” including the Service Contract, the Davis-Bacon, the Walsh-Healey, and the Fair Labor Standards Acts.
Continue Reading Administration Actively Solicits Higher Costs From Bidders – Is Its “High Road Procurement Policy” Headed Off a Cliff?