As federal agencies adjust their worksites to the realities of the COVID-19 pandemic, these changes will likely have a direct impact on government contractors and their employees who work at those sites.  If the government closes or reduces operations at a site, a contractor may be forced to furlough or reduce the hours of employees.  Some reduction actions could result in an employee who was exempt from overtime payments under the Fair Labor Standards Act (“FLSA”) being reclassified as non-exempt, which would require the employer to pay the employee overtime wages, with negative long-term repercussions.

An employee may volunteer to reduce her salary for any period of time without any FLSA consequences so long as her decision is completely voluntary.  To the extent the employer must impose involuntary reductions on an exempt employee, the following options are available that should not result in the employee being reclassified as non-exempt under FLSA:

Continue Reading FLSA Considerations In Response to Government COVID-19-Related Directions

The Trump Administration has declared this month National Slavery and Human Trafficking Prevention Month, calling on industry associations, law enforcement, private businesses, and others to work toward ending modern slavery and human trafficking. This proclamation follows the Administration’s efforts to combat human trafficking, which we have previously discussed here, and comes on the heels of an OMB memorandum released last fall aimed at “enhanc[ing] the effectiveness of anti-trafficking requirements in Federal acquisition while helping contractors manage and reduce the burden associated with meeting these responsibilities.”

Continue Reading Trump Administration Renews Focus on Anti-Human Trafficking Efforts

On November 6, 2019, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a Notice of Proposed Rulemaking (“NPRM”) aimed at resolving what OFCCP describes as a “decade of confusion.”[1] At issue is a long-standing question concerning the scope of OFCCP’s enforcement authority over health care providers participating in TRICARE, a federal health care program covering millions of military personnel, veterans, and their families. In particular, the NPRM requests comments on proposed regulations that would amend OFCCP’s definition of “subcontractor” and thereby remove TRICARE providers–and potentially other categories of providers–from OFCCP’s regulatory authority entirely. The deadline for filing comments is December 6, 2019.

Continue Reading OFCCP Proposes Rule Removing TRICARE Health Care Providers from Its Regulatory Authority

A few years ago, we reported on regulations governing federal contractors’ nondiscrimination obligations with respect to LGBT employees.  The Trump Administration has taken steps to roll back many Obama-era efforts, although the Executive Order and rules establishing LGBT-related protections for employees of federal contractors remain in force, at least for now.  The Second Circuit recently decided a high-profile case that affirmed the legal basis for those obligations and extended them beyond the federal contractor community.  In doing so, the Second Circuit rejected the Trump Justice Department’s position with respect to LGBT nondiscrimination.

The case, which has generated significant press coverage, deserves close attention from all employers, including contractors, as LGBT nondiscrimination rules continue to develop in courts, executive agencies, and legislatures.  In this post, we examine the considerations for government contractors and outline some best practices for companies that work with the federal government. 
Continue Reading In Sexual Orientation Nondiscrimination Claims, “EEO Is the Law,” and Not Just for Government Contractors

On February 1, the Office of Federal Contract Compliance Programs (OFCCP) issued 1,000 corporate scheduling announcement letters (CSALs) to federal contractors, a move that suggests a renewed emphasis on the agency’s enforcement of anti-discrimination and affirmative action employment laws. CSALs are informal notices that precede the official initiation of an OFCCP compliance evaluation, but the issuance of these letters serves as both a sign of OFCCP’s enforcement posture under the Trump administration and a call to action for the contractor establishments that receive these notifications.
Continue Reading Incoming! Issuance of 1,000 Notifications Portends Ramp-Up of OFCCP Enforcement Activity

As Congress scrambles in a last ditch attempt to pass a funding proposal to keep the government operating, government contractors face the various employment law implications of potential furloughs caused by a government shutdown. Of particular concern to private employers is how to furlough employees who are exempt from overtime payments under the Fair Labor

Alex Acosta was confirmed by the Senate to be the next Secretary of Labor.  He now takes responsibility for several high-profile issues with critical implications for government contractors.

As we have previously written, the Labor Department was an exceptionally active regulator from 2013 through the end of the Obama Administration.  Although few of us expect that pace to continue, Secretary Acosta will have to balance two competing pressures.  On one hand, the President has already signed a law repealing one of the Labor Department’s most controversial regulations (the Fair Pay and Safe Workplaces rule) and directed agencies to review current regulations with a critical eye.  On the other hand, Acosta will be leading a department charged with enforcing the laws that protect or favor workers’ rights, which sometimes compete with the priorities of their employers. 
Continue Reading Challenges and Priorities for the New Secretary of Labor

Under a new FAR rule, standard language in confidentiality agreements could lead to disqualification from contracting or False Claims Act liability.

Continue Reading New FAR Rule: Government May Disqualify Contractors Who Use Standard Confidentiality Language with Employees and Subcontractors

Congress recently began the process to legislatively overturn the regulations implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order.  Under the Congressional Review Act, Congress can dismantle regulations that were finalized in the waning days of a presidential administration.  Our colleagues in the Public Policy & Government Affairs practice provide some details of the

Hours before the Fair Pay and Safe Workplaces final regulations were to take effect, the U.S. District Court for the Eastern District of Texas issued a preliminary injunction to block most of the regulations, including the contentious disclosure provisions.  In a 32-page order, Judge Marcia Crone enjoined two key sections of the regulations: (1) the requirement that federal contractors and subcontractors monitor and disclose violations of 14 federal labor laws and certain state laws; and (2) the prohibition on mandatory arbitration of claims arising under Title VII or involving claims of sexual assault or harassment.  The court left in place the “paycheck transparency” section of the regulations, which will take effect on January 1, 2017.  Relying on recent Fifth Circuit precedent that enjoined the Administration’s immigration policy nationwide, the court stated that this injunction also applied on a nationwide basis.
Continue Reading Federal Court Enjoins Fair Pay and Safe Workplaces Regulations