DOL

Keen observers of federal suspension and debarment practice have noticed a recent change at the Department of Labor (DOL):  After years of inactivity, DOL’s discretionary suspension and debarment program suddenly came to life in 2017 and has been issuing suspensions and debarments at a steady clip ever since. [1]  Now, according to a recent announcement, DOL is poised to turn up its suspension and debarment activity yet another notch.  Starting this month and continuing through April 2020, DOL will be instituting a pilot program aimed at promoting and expediting its suspension and debarment activity, with the stated goal of “reduc[ing] the processing time on discretionary suspension and debarment actions from months to days.” 
Continue Reading Suspension & Debarment Update: Department of Labor Announces New Pilot Program

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

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…
Continue Reading Endgame for the Blacklisting Order

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

Just in time for Labor Day, the Labor Department and FAR Council issued a final rule and accompanying “Guidance” to implement the Fair Pay and Safe Workplaces Executive Order.  The new regulations will take effect on October 25, 2016.  The regulations—which run to nearly 900 pages—contain a number of changes from the proposed regulations to demonstrate that the Department listened to stakeholders during the lengthy comment period.

Despite some concessions to industry comments, the final regulations still establish substantial compliance obligations.  In light of those burdens, the contracting community is well advised to invest time to understand these provisions.  In this post, we summarize key changes and examine the way ahead for contractors. 
Continue Reading “Fair Pay and Safe Workplaces” Final Rule and Guidance Released

Following up on President Obama’s Labor Day release of an executive order requiring government contractors to offer paid sick leave to employees, the Labor Department issued proposed implementing regulations and invited comments by April 12.  Contractors with service contracts should consider submitting comments, especially if they already offer paid sick leave and rely on that leave to meet their fringe benefit obligations under the Service Contract Act.

Under the SCA, contractors cannot take credit for offering benefits that they are legally required to provide.  By setting a minimum required level of paid sick leave, the proposed regulations convert seven days of those benefits into legal requirements, rendering them ineligible for bona fide fringe benefit status under the SCA.  Contractors would remain free to continue to account for the value of excess paid sick leave in discharging their SCA obligations, but not the base requirements.  As a result, contractors may have to recalculate their fringe benefit packages by extracting the value of current paid sick leave benefits, and then offer some other offsetting bona fide fringe benefit or an equivalent cash payment.  In sum, the paid sick leave executive order could have the effect of penalizing contractors who were already offering the very same benefit that the government now requires. 
Continue Reading Labor Department Invites Comments on Regulations Governing Paid Sick Leave

The FAR Council published a final rule to implement the President’s February 2014 Executive Order establishing a minimum wage for federal contractors.  The final rule adopts almost all of the provisions of last year’s interim rule, with a few changes that employers should note.

First, the final rule clarifies…
Continue Reading FAR Council Finalizes Federal Contractor Minimum Wage Rule

Today, the Department of Labor (“DOL”) published a new final rule “prohibiting discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce.”  This rule implements Executive Order 13672, signed by President Obama on July 21, and marks the first federal action ensuring LGBT workplace equality that implicates the private sector.

Prior to implementation of this rule, as a result of Executive Order 11246, federal regulations prohibited federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, and national origin, and required them to take affirmative steps  to prevent discrimination on those bases from occurring.  Now, however, the list of classifications will be amended to substitute  “sex, sexual orientation, gender identity, or national origin” for “sex or national origin.”  The new language must be inserted into the Equal Opportunity Clause by federal agencies in all covered contracts and by prime contractors into covered subcontracts.  The new language will apply to contracts entered into or modified on or after April 8, 2015 (the effective date).

Last Wednesday, December 3, following DOL’s announcement of the final rule, Rep. John Kline, Chair of the House Education and Workforce Committee, and Rep. Tim Walberg, Chair of the House Subcommittee on Workforce Protections, sent a letter to the Director of DOL’s Office of Federal Contract Compliance Program (“OFCCP”) urging that the Office allow for a 60-day period for the public to comment on the regulation.  The Congressmen asserted that Section 553 of the Administrative Procedure Act (“APA”) requires general notice of a proposed rulemaking with an opportunity for public participation.  DOL, of course, disagreed. The agency  indicated that implementation without prior notice and comment “is consistent with agency precedent under other Administrations,” and that because the Executive Order was “very clear” and “left no discretion regarding how to proceed,” principles of administrative law allow DOL to publish the final rule without prior notice or comment.Continue Reading DOL Implements New Rule: Government Contractors and Subcontractors Prohibited from Discriminating Against LGBT Workers.