In a July 1, 2016 memorandum (OM 16-23), the Office of the General Counsel for the National Labor Relations Board ("NLRB") announced that it was beginning to take steps to comply with the Fair Pay and Safe Workplaces Executive Order (the "Order") – the regulations for which have not yet been finalized. The Order imposes a host of new obligations on government contractors with more than $500,000 in government contracts, including an obligation to report various labor law violations during the bid and proposal process. Some of our prior posts on the Order and the proposed implementing regulations can be found here and here.
One of the internal government obligations imposed by the Order is that administrative agencies make information concerning labor law violations accessible to other agencies. The memorandum addresses the NLRB's efforts to ensure that fellow federal agencies have access to administrative determinations issued by the NLRB which may be covered by the Order. In order to ensure that the information can be shared across databases, the NRLB has created a new form, which will request certain information from "charged party employers" in NLRB actions. For example, the new form requests the employer's: Commercial and Government Entity ("CAGE") number; Data Universal Number System ("DUNS") number; DUNS number suffix; and the Employer Identification Number ("EIN") or Taxpayer Identification Number ("TIN"). These are fields compatible with existing government contracting systems which will facilitate the sharing of violation information.
Attached to the memorandum is language (OM 16-23, Attachment 2) that will be sent to charged party employers to aid in the collection of the information whenever a decision is made by a Region to issue a complaint. The language informs the charged party employer of the NLRB's obligation to provide certain information to other agencies and then states that "if you reach a resolution of this matter before the Region issues a complaint, such as by entering a pre-complaint informal settlement agreement with the Regional Director, no information on this case will be forwarded to this database."The email makes clear that in the absence of a settlement, "[t]he information you provide will be forwarded to the database accessed by Labor Compliance Advisors in making their decisions regarding contracting, ... if the Regional Director issues a complaint in this matter."
The language goes on to state that if a complaint is issued and the charged party employer fails to provide the requested information, not only will the agency send the information it has to other federal agencies, but it will also notify the other federal agencies of the contractor's refusal to provide the information, which "may be considered by the Labor Compliance Advisors in assessing whether the charged party employer will be eligible to contract with the federal government."
It is noteworthy that the NLRB is beginning to take steps to implement the Order even though the final implementing regulations have yet to be published. The final rule is expected to be published in August 2016. This action by the NLRB suggests that the Administration remains fully committed to the Order and that government contractors should expect the final rules to be published in the near future.
Contractors should continue to prepare for the implementation of the Order and its corresponding regulations. This should include undertaking comprehensive compliance audits to ensure compliance with the labor and employment laws subject to the Order as well as compiling a list of covered violations that must be reported pursuant to the Order. For more information on preparing for the implementation of the Order, see our prior post.
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