Hiring Freeze Thaws: How New Administration Policies May Impact Contract Administration

Lyndsay A. Gorton

On April 13, 2017, President Trump’s federal hiring freeze will be lifted—at least in part. The hiring freeze was instituted by a presidential memorandum signed on January 23, 2017, and prevents federal agencies from filling vacant federal government positions that existed at that time, or creating new positions. President Trump included certain exceptions, including military personnel and other positions deemed “necessary to meet national security or public safety responsibilities.” The memorandum requests that agencies use existing personnel efficiently and does not prohibit reallocation of resources for the highest priority concerns. Continue reading “Hiring Freeze Thaws: How New Administration Policies May Impact Contract Administration”

President Trump Rolls Back Obama-Era Fair Pay and Safe Workplaces Rule

Stephanie M. Harden and Alexander H. Berman

On Monday, March 27, President Trump exercised his authority under the Congressional Review Act (“CRA”) to nullify the Obama-era Fair Pay and Safe Workplaces Rule, which was promulgated pursuant to President Obama’s 2014 Executive Order 13673. The rollback, which has been much anticipated by the contracting community, is part of a push by the Trump administration and the 115th Congress to scale back a number of contracting regulations that were put into effect under the Obama administration (for more on this topic, see our prior post here).

President Trump’s March 27th signing of the resolution—which effectively removes the rule from the books—follows the passage of a joint disapproval of the rule by the House and Senate. Though the rule’s reporting requirements and arbitration prohibitions had already been blocked in October 2016 by a district judge in the Eastern District of Texas, the CRA resolution, now bearing a Presidential signature, fully nullifies the entire rule and all of its requirements on federal contractors—including its paycheck transparency provisions, which were previously left intact by the court in Texas. Indeed, pursuant to the CRA, a rule that is nullified using this process “shall be treated as though such rule had never taken effect.” 5 U.S.C. § 801(f). Continue reading “President Trump Rolls Back Obama-Era Fair Pay and Safe Workplaces Rule”

How a Clinton-Era Law Could Reduce Regulations on Government Contractors under President Trump

Justin Chiarodo and Philip Beshara

It is no secret that deregulation is a top priority for the Trump Administration and the Republican-led Congress. In the early weeks of governing together, President Trump and House Speaker Paul Ryan have dusted off the Congressional Review Act (“CRA”) as the tool of choice for undoing federal rules and regulatory initiatives implemented by the Obama Administration. The little-known but important law, enacted by President Clinton in 1996, provides Congress with the ability to enact legislation overturning certain federal agency rules. In the more than two decades on the books, the CRA has only been used to overturn a federal rule on one occasion when, in 2001, President George W. Bush signed a resolution overturning an ergonomics rule issued by the preceding administration. However, despite its past obscurity, the CRA is now more important than ever. Continue reading “How a Clinton-Era Law Could Reduce Regulations on Government Contractors under President Trump”

Fair Pay and Safe Workplaces Final Rule Takes Effect in October: Are You Ready?

Christian N. Curran

Christian N. Curran

In what may be the most significant change to contractor compliance this year, the Fair Pay and Safe Workplaces final rule takes effect on October 25, 2016. On August 25, 2016, the FAR Council and Department of Labor (“DOL”) issued the final rule and guidance implementing the Fair Pay and Safe Workplaces Executive Order, also known as “The Blacklisting Order” (originally issued on July 31, 2014). The order created new requirements for contractors, adding pre- and post-award reporting demands on covered contracts regarding contractor compliance with 14 separate labor laws. The proposed rule that was published on May 28, 2015, resulted in over 10,000 comments being submitted. The rule contains substantial new compliance obligations for contractors and drastic consequences for noncompliance. As discussed below, contractors need to take immediate steps in order to ensure readiness for these expansive new obligations. Continue reading “Fair Pay and Safe Workplaces Final Rule Takes Effect in October: Are You Ready?”

Five Things Government Contractors Should Keep in Mind about Political Activities this Election Season

Justin Chiarodo and Stephanie M. Harden 

ChiarodoJ+ZechmannSThe 2016 election season is unlike any other in recent memory. But like elections past and yet to come, political contributions and lobbying remain a mainstay of the political process. This is particularly true in the federal government contracting community, which is heavily influenced by executive and legislative action (and inaction). Though we can expect the unexpected in the three months leading up to the election, we offer below five fundamental “do’s and don’ts” that government contractors should keep in mind to guide their political activities. Continue reading “Five Things Government Contractors Should Keep in Mind about Political Activities this Election Season”

Department of Labor Issues Final Rule Updating Sex Discrimination Guidelines

Merle M. DeLancey Jr. and Lyndsay A. Gorton

DeLancey+GortonOn June 15, 2016, the Department of Labor (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) issued a final rule updating its 1970 sex discrimination guidelines. The final rule, available here, enforces Executive Order 11246, which prohibits federal contractors and subcontractors from employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin. The rule applies to companies that have federal government contracts of $10,000 or more and will be effective on August 15, 2016. Continue reading “Department of Labor Issues Final Rule Updating Sex Discrimination Guidelines”

NISPOM Conforming Change 2: What You Need to Know

Justin Chiarodo and Philip Beshara

Justin A. Chiarodo CC2030E479B404E304DCCE7B55CFAC26The government recently issued long-awaited amendments to the National Industrial Security Program Operating Manual (“NISPOM”).  The amendments, known as Conforming Change 2, are targeted at combating insider threats and impose several new requirements warranting immediate action by contractors holding facility clearances.

There are four key elements to Change 2: (1) a mandated Insider Threat Program (“ITP”); (2) new cyber incident reporting requirements; (3) newly defined NISPOM components; and, (4) an updated standard for foreign-owned or controlled companies seeking access to proscribed information.  We summarized these changes and provide implementation suggestions below.

I. Insider Threat – Mandated Insider Threat Program

Change 2 requires cleared contractors to have a written Insider Threat Program plan no later than November 30, 2016.  The ITP must detect, deter, and mitigate insider threats consistent with the ITP requirements currently imposed on executive branch agencies (as set forth in Executive Order 13587 and the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs). Continue reading “NISPOM Conforming Change 2: What You Need to Know”