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How To Comply With Executive Order 13496

How To Comply With Executive Order 13496. Nora Carroll Tammy Daub Office of the Solicitor Civil Rights and Labor Management Division.

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How To Comply With Executive Order 13496

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  1. How To Comply With Executive Order 13496 Nora Carroll Tammy Daub Office of the Solicitor Civil Rights and Labor Management Division

  2. How to Comply with Executive Order 13496 and the Labor Department’s Regulations Requiring Notice to Employees of Rights under the National Labor Relations Act New Employee Notification Requirements for Federal Contractors and Subcontractors: 2

  3. Federal Contractors and Subcontractors must Post Notice to Employees of Labor Law Rights • post notices informing employees about their rights under Federal labor law and • include provisions in their contracts that require their subcontractors to post the same employee notice Beginning on June 21, 2010, federal law requires contractors entering into contracts with the Federal government to: 3

  4. What federal law requires the new notice to employees? Executive Order 13496 and the Department of Labor’s regulations implementing this Executive Order, 29 C.F.R. Part 471, which were published on May 20, 2010, require federal contractors and subcontractors to inform employees about their labor law rights. 4

  5. What employee rights are contained in the new notice? • The notice contains rights under the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq. • The NLRA is the primary law governing relations between unions and employers in the private sector. • The law guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. 5

  6. What does the employee notice say? Generally, the employee notice • lists employees’ rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; • provides examples of unlawful employer and union conduct that interferes with those rights; and • indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions about the rights or to file complaints. 6

  7. 11” 17” http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf

  8. Where can we find the text of the required employee notice and the contract provisions that must be inserted into contracts? The text of the employee notice and the provisions that must be inserted into federal contracts and subcontracts agreeing to inform employees about NLRA rights can be found at 29 CFR Part 471 Appendix A. 8

  9. Useful links • Federal Register • http://www.gpoaccess.gov/fr • e-Code of Federal Regulations • http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?sid=f6fed2f8c2bf1d75f21e983133f1dd4d&c=ecfr&tpl=/ecfrbrowse/Title29/29cfrv2_02.tpl#40 • OLMS • http://www.dol.gov/olms • OFCCP • http://www.dol.gov/ofccp

  10. Who is covered by this rule? Any contractor or subcontractor that is an employer under the NLRA must comply with this rule. Employers not covered by the NLRA are: • the United States or any wholly owned Government corporation; • any Federal Reserve Bank; • any State or political subdivision thereof; • any person subject to the Railway Labor Act; • any labor organization (other than when acting as an employer); or • anyone acting in the capacity of officer or agent of such labor organization. 10

  11. Some employees are excluded from coverage under the NLRA Employers exclusively employing workers who are excluded from the definition of “employee” under the NLRA are not covered by the requirements of this rule. Excluded employees include those employed: • as agricultural laborers; • in the domestic service of any family or person at his or her home; • by his or her parent or spouse; • as an independent contractor; • as a supervisor as defined under the NLRA; • by an employer subject to the Railway Labor Act; or • by any other person not an employer as defined in the NLRA 11

  12. What are the basic posting requirements that contractors and subcontractors must satisfy? • Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees. • In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. 29 C.F.R. 471.2(d) 12

  13. Other requirements regarding physical posting of the employee notice Specifically, the employee notice must be posted where: • employees covered by the NLRA • engage in contract-related activity, which includes indirect or auxiliary work without which the contract could not be effectuated, such as maintenance, repair, personnel and payroll work. 29 C.F.R. 471.2(d) 13

  14. Should contractors and subcontractors also post the notice electronically? • Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically. • Electronic posting requires contractors and subcontractors to post a link to OLMS’s website containing the employee notice where they customarily place other electronic notices to employees about their jobs. • The link must be no less prominent than other employee notices. • Electronic posting cannot be used as a substitute for physical posting. 29 C.F.R. 471.2(f) 14

  15. How can contractors and subcontractors obtain the poster? Contractors and subcontractors can obtain the required poster 3 ways: • OLMS will print posters and provide them to federal contracting departments and agencies for supply to contractors and subcontractors; • contractors and subcontractors can request posters from OLMS or OFCCP; • contractors and subcontractors can download the poster from http://www.olms.dol.gov. Contractors may reproduce and use exact duplicate copies of the Department’s official poster. 29 C.F.R. 471.2(e) 15

  16. Any specific instructions for downloading the poster? The OLMS web page can be found at: • http://www.dol.gov/olms/regs/compliance/EO13496.htm You can download the 11X17 poster from • http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf You can download the two page format and put them together to form the 11X 17 poster from • http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster2page_Final.pdf

  17. Are contractors and subcontractors required to post translations of the employee notice? • Where a significant portion of contractor's workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees. • OLMS will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements. 29 C.F.R. 471.2(d ), (e) and (f) 17

  18. Posting requirements do not apply to the following: • prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000. • subcontracts below $10,000. • contracts and subcontracts for work performed exclusively outside the territorial United States. Other exceptions and exemptions may apply. 29 C.F.R. 471.3 18

  19. Important note about exceptions to posting requirements: No department, agency, contractor or subcontractor is permitted to procure or provide supplies or services in order to avoid the posting requirements. 29 C.F.R. 471.3 (a) 19

  20. Can employees file complaints? • Employees may file complaints with OLMS or DOL’s Office of Federal Contract Compliance (OFCCP) about contractors and subcontractors that do not comply with the Labor Department’s posting requirements. 29 C.F.R. 471.11 • Employees may also file complaints if the required contract provisions are not included in contracts and subcontracts. 29 CFR 471.11 20

  21. What must be in complaints? • Complaints must be in writing and must include the complaining employee’s contact information and signature. 29 C.F.R. 471.11 • Complaints must contain sufficient information about the location of the alleged violation and any other information that will assist in resolving the complaint. 29 C.F.R. 471.11 21

  22. Compliance evaluations • In addition to employee complaints, OFCCP may conduct evaluations to determine compliance. 29 C.F.R. 471.10 • Compliance evaluations may be conducted to determine compliance with this regulation, or may be done in conjunction with evaluations of contractor compliance with other laws and regulations enforced by the Department. 29 C.F.R. 471.10 22

  23. What will a compliance evaluation involve? • the employee notice is posted in conformity with the applicable physical and electronic posting requirements contained in 29 C.F.R. 471.2(d) and (f). 29 C.F.R. 471.10 • the provisions of the employee notice clause are included in government contracts, subcontracts and purchase orders. 29 C.F.R. 471.10 During an evaluation, OFCCP will determine whether: 23

  24. What happens if a complaint is filed or an OFCCP evaluation finds noncompliance? • For both complaints and compliance evaluations, OFCCP will investigate and develop a case record, which will include findings regarding compliance. 29 C.F.R. 471.11 • If the record indicates a violation, OFCCP will make reasonable efforts to obtain compliance through conciliation. 29 C.F.R. 471.10 and 471.12 24

  25. What conduct violates the rule? A contractor may be found in violation of the rule based on: • The contractor’s failure or refusal to comply with requirements regarding employee notice or inclusion of the contract clause in its subcontracts. • The contractor’s failure or refusal to allow a compliance evaluation or complaint investigation to be conducted; • The contractor’s refusal to cooperate with the compliance evaluation or complaint investigation, including failure to provide information sought during those procedures. 29 C.F.R. 471.13 25

  26. Other contractor conduct that may violate the rule A contractor may also be found in violation of the rule based on: • A contractor’s refusal to take such action with respect to a subcontract as directed by the Director of OFCCP or the Director of OLMS as a means of enforcing compliance with the provisions of this part. • A subcontractor’s refusal to adhere to requirements of this part regarding employee notice or inclusion of the contract clause in its subcontracts. 29 C.F.R. 471.13 26

  27. What happens if contractors fail or refuse to comply with the requirements of rule? • If conciliation efforts fail, and contractors continue not to comply with the rule, violations may result in enforcement proceedings. 29 C.F.R. 471.12 • The Director of OFCCP will refer the matter to the Director of OLMS, who may take enforcement action under 471.13. 27

  28. What does enforcement action involve? • Contractors will be provided an opportunity for a hearing before the administrative law judge (ALJ). • The ALJ’s decision may be appealed to the Labor Department’s Administrative Review Board (ARB). • If the ARB concludes that a contractor has violated this rule, the ARB will order the contractor to cease and desist from the violations, require the contractor to provide appropriate remedies, and/or impose appropriate sanctions and penalties. 29 C.F.R. 471.13 28

  29. What sanctions and penalties may be imposed for noncompliance? • Contractors that violate the regulations may be subject to sanctions, including suspension or cancellation of the contract. 29 C.F.R. 471.14 • Contractors that violate the regulations may be debarred from holding federal contracts. 29 C.F.R. 471.14 • Contractors may be reinstated upon a finding that the contractor or subcontractor has come into compliance and has shown that it will comply in the future. 29 C.F.R. 471.16 29

  30. For further information about the requirements of this regulation, contact: • Office of Federal Contract Compliance Programs • Call OFCCP toll free at (800) 397-6251 • Send e-mail to OFCCP at: OFCCP-Public@dol.gov • Contact your local OFCCP District or Area office (http://www.dol.gov/ofccp/askofccp.htm) • Office of Labor Management Standards • Call OLMS at (202) 693-0123 • Send e-mail to OLMS at: olms-public@dol.gov • Contact your local OLMS District office (http://www.dol.gov/olms/contacts/lmskeyp.htm ) 30

  31. Questions?

  32. Are public employers that are federal contractors, such as state universities, impacted differently by this Executive Order compared to private sector employers? • Public employers are excluded from the rule’s application. Specifically, Section 471.4(a) excludes the U.S. and the states and their political subdivisions.

  33. Are "non-union employers" also required to post the notice and include the clause in their government contracts?Similar question: Does the posting apply to federal subcontractors that do not currently deal with a union? • Yes, employers that do not presently deal with unions as representatives of employees, or maintain a policy of not wanting to deal with unions as representative of employees, must nevertheless comply with the regulations if they are a federal contractor or subcontractor.

  34. Do we continue to post the notice required by Executive Order 13201 as well as the notice required by this executive order? • No, Executive Order 13201 has been repealed, and so have the Labor Department’s regulations implementing that Executive Order.

  35. Does the clause need to be listed verbatim in the subcontract or can it be included by citation to 29 CFR Part 471? • The regulation permits incorporation of the contract clause by reference to 29 CFR Part 471 Appendix A. See Sec. 471.2(b).

  36. Does the Department of Labor have free posters that we can download/print and distribute to our various locations? • Yes, go to DOL.gov/OLMS

  37. Does the new requirement apply to contracts in place before the effective date of the final rule, or does it just apply to contracts entered into after the effective date of the final rule? • The regulation applies to contracts resulting from solicitations issued after the effective date of the final rule, which is June 21, 2010. The Federal Acquisition Regulation Council is working on an amendment to the Federal Acquisition Regulations, and we expect that interim final rule to issue shortly. For example, if a solicitation was issued by an agency on June 1, 2010, the resulting contract (even if executed after June 21, 2010) would not be subject to the Order’s requirements. On the other hand, if the solicitation is issued on or after June 21, 2010, any resulting contract is subject to the Order and may be reviewed.

  38. Are contractors whose projects are funded by federal grants or loans required to post the notice? • The rule excludes “federal financial assistance” from the definition of "government contract." "Federal financial assistance" generally means grants or loans of federal funds. If the project is preformed based on "federal financial assistance" rather that a government contract or subcontract, then the rule does not apply. See 29 CFR 471.1

  39. Does the rule apply to hospitals, physician groups, and other medical care facilities because of their support or involvement with Medicare, Medicaid, etc? In other words does Medicare constitute as federal contract? • Reimbursements made pursuant to Medicare Parts A and B, and Medicaid are Federal financial assistance, not contracts. • Medicare Parts C & D, TRICARE, and FEHPB may be federal contracts depending on the circumstances.

  40. How long must you keep the notice posted? • Federal contractors and subcontractors must keep the required notices posted through the duration of the contract and subcontract.

  41. If most or all of a contractor's employees telecommute, how do they comply with the posting requirements? • In a case where most or all of an employer’s workforce telecommutes, then that employer probably posts notices electronically to those employees about the terms and conditions of employment. In that case, this notice must be posted electronically. And the notice must be posted on the employer's website with a link to DOL's website with the poster, and the link must read: Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers

  42. If a covered contractor operates from several locations, but only one location has employees working on the federal contract, does the contractor need to post the notices in every office or just in the one with employees working on a federal contract? • The contractor must post the notice where NLRA-covered employees engage in activities related to the performance of the contract. The rule has a broad definition of contract-relatedness at Sec. 471.2(d)(2), and includes indirect or auxiliary functions that support the government contract. If, under the legal test, employees in a plant or office do not meet the contract-relatedness test, then no posting is required If employees not engaged in the performance of the federal contract or subcontract work in the same plant or office as contract-related employees, then that plant or office must get the notice posted.

  43. If we are a sub-contractor, and we use other companies to do some of the contract work, do we classify them as a sub-sub-contractor and need to amend contracts with them? Is a purchase order considered a contract? • Yes, all subcontractors must include the contract provisions and the requirement to post in contracts with their subcontractors, and those subcontractors of subcontractors must do the same. The Executive Order and the rule apply to subcontractors at all tiers. In addition, purchase orders are contracts under the rule.

  44. Is there a sample wording recommendation that companies can insert into their subcontracts? • The required contract provisions are not just samples. The exact text must be included by contracting agencies in the prime contract, and the prime contractors must include the identical contract provisions in their subcontracts. The 4-paragraph contract provisions can be found at Appendix A to Subpart A, 29 CFR 471. They can be incorporated by reference to 29 CFR Part 471 Appendix A.

  45. Is there any provision to exempt federal government contracts? No, contractors cannot exempt themselves or their subcontractors by inserting some provision in contracts in an attempt to do so. But recall that the contracts and subcontracts that are not covered by the rule include: • prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000. • subcontracts below $10,000. • contracts and subcontracts for work performed exclusively outside the territorial United States. See Part 471.3 for exemptions that the contracting department or agency can request from the Director of OLMS.

  46. Does this apply to the construction industry? • Yes.

  47. We sell HVAC parts, equipment and supplies to federal contactors, but we do not install, repair or manufacture what we sell. Does Exec. Order 13496 with its posting requirement apply to us? • It depends on whether the sale of parts and equipment to a prime contractor is a subcontract of the government contract. Under the rule, subcontracts are any agreement or arrangement between a contractor and any person • for the purchase, sale or use of personal property or non-personal services that, in whole or in part, is necessary to the performance of any one or more contracts; or • Under which any portion of the contractor’s obligation under any one or more contracts is performed, undertaken or assumed.

  48. We only have one facility - with a union - that produces products for Federal contracts. Must this notice be given to all employees regardless of their union status even if they do not work on products contained in Federal contracts? • First, the presence or absence of a union representing the employer's employees does not drive the requirement to post. • Second, the notice must be posted where NLRA-covered employees engage in activities related to the performance of the contract, regardless of whether or not they are represented by a union.

  49. What is the prime contractor's responsibility in terms of ensuring subcontractors are compliant with this posting? Do we have to visit all their locations to insure their postings are compliant? Would a memo or email suffice? • A prime contractor must insert the contract provisions in all it subcontracts and must not ignore noncompliance of subcontractors. If the Labor Department becomes aware that a significant number of prime contractors are aware of and ignoring the noncompliance of subcontractors, then it may issue an order requiring the prime contractor to make diligent efforts to seek compliance of subcontractors, and the prime contractor may be subject to penalties for disobeying that order.

  50. What is the related FAR clause that would be used to incorporate this requirement into the contract? • Once the FAR Council publishes its companion regulation, which will be very soon, the FAR contract clause will appear in 48 CFR 52.222-40, entitled "Notification of Employee Rights under the National Labor Relations Act."

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