United States: Department Of Labor And The Federal Acquisition Regulatory Council Issue Final Guidance And Rule Implementing Fair Pay And Safe Workplaces Executive Order

Last Updated: September 23 2016
Article by Bobbi Britton Tucker and Peter J. Ennis

On August 24, 2016, the U.S. Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR) issued a Final Guidance and a Final Rule, respectively, implementing the Fair Pay and Safe Workplaces Executive Order. The Final Rule can be found at https://www.federalregister.gov/articles/2016/08/25/2016-19676/federal-acquisition-regulation-fair-pay-and-safe-workplaces; and the Final Guidance can be found at https://www.federalregister.gov/articles/2016/08/25/2016-19678/guidance-for-executive-order-13673-fair-pay-and-safe-workplaces.

Executive Order

The Fair Pay and Safe Workplaces Executive Order, dated July 31, 2014, purportedly attempts to ensure federal contractors' compliance with laws that protect their employees' safety, wages and civil rights. The Executive Order requires federal contractors on covered contracts to disclose labor law violations and gives agencies guidance on how to consider labor violations when awarding federal contracts. The Executive Order also ensures that contractors' employees and independent contractors are given certain information regarding the pay they are owed, their employment status and limits the use of predispute arbitration clauses in employment agreements on such federal contracts.

Highlights of Final Regulations

The Final Rule and Final Guidance (collectively, Final Regulations) apply to federal contractors and subcontractors bidding on any federal contract or subcontract worth more than $500,000 — with the exception of contracts for commercial off-the-shelf items. Highlights of the Final Regulations are:

Disclosure Requirements. Covered contractors and subcontractors must report whether they received any "administrative merits determinations, civil judgments or arbitral awards or decisions" in the preceding three years (but initially only going back to October 25, 2015), concerning any of the following 14 labor and employment laws:

  • Fair Labor Standards Act;
  • Occupational Safety and Health Act (OSHA) (and state law equivalents);
  • Migrant and Seasonal Agricultural Worker Protection Act;
  • National Labor Relations Act;
  • Family and Medical Leave Act;
  • Davis-Bacon Act;
  • Service Contract Act;
  • Title VII of the Civil Rights Act;
  • Americans with Disabilities Act; Age Discrimination in Employment Act;
  • Executive Order 11246 (affirmative action and equal employment opportunity); Vietnam Era Veterans' Readjustment Assistance Act;
  • Section 503 of the Rehabilitation Act; and
  • Executive Order 13658 (federal contractor minimum wage).
  • The legal entity that must report its violations is the one submitting the bid/offer or contract. Thus, violations by parent, subsidiaries and other affiliated companies need not be reported; however, violations by a different division of the same legal entity must be reported.

Due Process. Covered contractors and subcontractors will receive notice of, and have the opportunity to respond to, agency recommendations prior to a final responsibility determination.

Public Availability of Disclosures. Covered contractors and subcontractors must publicly disclose specified information regarding reportable violations - the law violated, the case identification number, the date of the decision and the name of the entity that made the decision.

Paycheck Transparency. Effective January 1, 2017, covered contractors and subcontractors must: provide wage statements to covered employees concerning their hours worked, overtime hours, pay and any additions to or deductions made from their pay; provide independent contractors a document informing them of their independent contractor status; and provide written notice to inform workers if they are exempt from overtime pay.

Predispute Arbitration Agreements. Covered contractors and subcontractors with contracts for goods and services worth more than $1 million cannot require employees to enter into any predispute arbitration agreement covering Title VII discrimination claims or sexual harassment claims. However, this prohibition does not apply to employees covered by a collective bargaining agreement, or employees or independent contractors who entered into a valid agreement to arbitrate prior to the date the contractor or subcontractor bids on the covered contract (except if the contractor is permitted to change the terms of the agreement or when the agreement is renegotiated or replaced, in which case the bar would apply at that time).

Pre-Assessment. Covered contractors are encouraged, though not required, to go to the DOL for a pre-assessment of their violations before bidding contracts.

Effective Dates of Reporting Requirements

There is a phased implementation schedule.

Prime Contractors. Beginning October 25, 2016, prime contractors must report/disclose workplace law violations received within the first year preceding the start of a contract bid (which will be phased into a three-year look back period by October 25, 2018). However, in the case of contractors bidding on solicitations for contracts under $50 million, disclosure is not required until April 25, 2017. In addition, prime contractors must make updated disclosures every six months thereafter for the duration of the contract.

Subcontractors. Subcontractor reporting/disclosure requirements begin on October 25, 2017 – one year after prime contractors' reporting obligations. Subcontractors must report their labor violations directly to the DOL and then must report back to the prime contractor the DOL's response to its disclosure.

State Laws

The Final Regulations focus on federal laws. However, the state law equivalents of most of these laws will be subject to a future rulemaking. The exception to this is OSHA state law equivalents, which are subject to the reporting requirements set forth in the Final Regulations.

Practical Guidance

First, to prepare for the implementation of the Final Regulations, federal contractors should ensure they are familiar with the types of violations or decisions that must be reported under the regulations and create or modify procedures to collect and track the information in a way that can be readily retrieved

Second, federal contractors should consider whether it makes sense for them to take advantage of the new pre-assessment options, especially to establish an initial base line.

Third, federal contractors should take steps to insure that any standard procedures that require employees to sign pre-dispute arbitration agreements are terminated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.