New Legal Landmines for Government Contractors

Deborah P. Kelly

Deborah P. KellyBuckle up: In his last term, President Obama has unleashed a flurry of Executive Orders and Presidential Memoranda that promise sweeping changes for government contractors and their employees. Below, we outline some of the major recent workplace initiatives that create new restrictions and requirements for government contractors, describe their effects, and suggest what to do about them.

  1. The “Blacklisting” Order

What’s New?

On July 31, 2014, President Obama signed Executive Order (E.O. 13673) “Fair Pay and Safe Workplaces,” known as the “Blacklisting” Order, which instructs contracting officers to make responsibility determinations for procurements over $500,000 based on a subjective review of federal contractors’ compliance with 14 federal and equivalent state labor, employment, and safety laws. The Department of Labor’s proposed guidance and the FAR Council’s proposed regulations would create an online database for agencies to track contractors’ violations, which could provide a basis for suspension and debarment procedures. Continue reading “New Legal Landmines for Government Contractors”

New Notice of Proposed Rulemaking to Update Department of Labor’s Sex Discrimination Guidelines

Deborah P. Kelly and Lyndsay A. Gorton

Deborah P. KellyLyndsay A. GortonIn the past 35 years, many laws have been passed to promote equality and reflect changes in the workplace, including the Pregnancy Discrimination Act (1978), the Family Medical Leave Act (1993), and the Lilly Ledbetter Fair Pay Act (2009); yet the Department of Labor’s Sex Discrimination Guidelines have not been substantively changed since 1970. In an attempt to resolve this inconsistency, on January 28, 2015, the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking (NPRM) to better align the sex discrimination standards under Executive Order 11246 (Executive Order) with current interpretations of existing Title VII principles and the OFCCP’s interpretation of the Executive Order. The NPRM proposes regulations that attempt to “outline the sex-discriminatory practices that contractors must identify and eliminate, and clarify how contractors must choose applicants for employment without regard to sex.”

The Executive Order was issued in 1965, and has been amended several times over the past 40 years, including most recently by President Obama on July 23, 2014. The purpose of the Executive Order is to:

  1. Prohibit covered government contractors and subcontractors from discriminating based on race, color, religion, sex, sexual orientation, gender identity, or national origin; and2.   Take affirmative action as required by the Secretary of Labor to ensure that contractors do not discriminate on any of these bases while candidates apply for a job and during the terms of their employment.

The Executive Order, and by extension the proposed rule, applies to businesses or organizations that hold at least one federal contract with a value over $10,000 or multiple federal contracts in a 12-month period with aggregate value over $10,000. Continue reading “New Notice of Proposed Rulemaking to Update Department of Labor’s Sex Discrimination Guidelines”

Government Contractors and Executive Order – Fair Pay and Safe Workplaces: New Federal Labor Law Compliance Issues

Justin A. Chiarodo, Deborah P. Kelly, and Lyndsay A. Gorton

Justin A. ChiarodoDeborah P. KellyLyndsay A. GortonDOD, FYSA, SITREP – government contractors are familiar with the alphabet soup that goes hand-in-hand with doing business with the federal government as well as most common labor laws and their acronyms: Federal Labor Standards Act, (“FLSA”), the Family and Medical Leave Act (“FMLA”), or Occupational Safety and Health Act of 1971 (“OSHA”). Now, the question is whether contractors comply with these laws and recent developments in government contractor employment law. On July 31, 2014 the White House issued the Executive Order – Fair Pay and Safe Workplaces (the “Executive Order”) which creates new requirements that will add pre and post-award reporting demands on many new government services and construction contracts. The purpose of this alert is to help government contractors sort through the dense language of the Executive Order and provide a roadmap for what to do going forward so that violations of labor laws don’t lead to suspension or debarment.

  1. What’s New? The Basics of Executive Order – Fair Pay and Safe WorkplacesThe Executive Order applies to all new “procurement contracts for goods and services” with an expected value exceeding $500,000. The new requirements do not apply to contracts for “commercially available off-the-shelf items,” or contracts presently being performed. According to the White House Fact Sheet for the Executive Order, the new requirements will be applied in stages, on a “prioritized basis” beginning in 2016. Neither the Executive Order nor the Fact Sheet define “prioritized basis,” but presumably, government contracts with the highest expected values and most hazardous contract conditions will be among the first to report under the new requirements. The 2016 date provides some time for both the Federal Acquisition Regulatory (“FAR”) Council and Department of Labor (“DOL”) to issue guidance for implementation as required by the Executive Order.

Continue reading “Government Contractors and Executive Order – Fair Pay and Safe Workplaces: New Federal Labor Law Compliance Issues”

Recent Changes to Federal Employment Regulations

Merle M. DeLancey Jr. and Deborah P. Kelly

Deborah P. KellyIn the past two months, three important changes took place that will affect the federal workplace. First, in early February, President Obama signed an Executive Order raising the minimum wage for federal contractors from $7.25 to $10.10. On the heels of that Executive Order, in March, the President signed a memorandum directing the Department of Labor (“DOL”) to “propose revisions to modernize and streamline” the existing Fair Labor Standards Act’s overtime regulations. Finally, three days ago, the DOL’s new federal contract affirmative action regulations took effect—a development we first analyzed in this alert. Below, we summarize these three events and how each could affect your federal contracting business.

I.     Obama’s Executive Order Regarding Federal Contractor’s Minimum Wage

With the March Executive Order, President Obama raised the minimum wage for federal contractors. How will this new Executive Order affect your federal contracts? Below, we highlight the critical questions and answers regarding the scope and substance of this new Executive Order. Continue reading “Recent Changes to Federal Employment Regulations”