Company communications with government authorities about potential criminal activity or wrongdoing by the company’s employees may expose that company to liability for defamation; that is, unless those communications are considered privileged.  In the majority of states, communications with police or prosecutors are afforded “qualified” or “conditional” privilege, and generally may be the basis of a defamation suit only if they are made with malice or are knowingly false.  And several states have afforded absolute privilege or immunity to communications that are made in response to a government investigation that could lead to prosecution.

But importantly for contractors, potential defamation liability on the basis of statements to the government could arise outside the context of a government investigation.  For example, the recent issuance of the Fair Pay Safe Workplaces Order (“FPSW Order” or “Order”), which requires contractors to disclose violations of number of labor laws, may have significant implications for contractors’ exposure to defamation suits.  
Continue Reading New Obligations to Disclose Labor Law Violations Could Expose Contractors to Defamation Liability

On April 10, the Federal Acquisition Regulatory Council issued an interim rule “amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O. 13672) . . . and a final rule issued by the Department of Labor.”  As we previously blogged, Department of Labor’s (DOL’s) final rule implements E.O. 13672 and effectively “prohibit[s] discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce.”  Despite the April 10 issuance of this interim rule, the DOL regulation actually became effective on April 8 of this year.
Continue Reading FAR Council Issues Interim Rule Implementing LGBT Protections

Those of us who write about the Affordable Care Act seldom have the chance to use the phrase “overwhelming bipartisan support.”  The Hire More Heroes Act of 2015 provides a welcome opportunity to do so.  The Act, designed to encourage small businesses to hire veterans, has received bipartisan and bicameral support in Congress.  If it becomes law – a prospect that looks increasingly likely – it will complement the administration’s recent push to encourage government contractors to employ more veterans.  Although the Hire More Heroes Act would offer valuable benefits to businesses, this post flags a few unpleasant surprises that could arise in its implementation.  
Continue Reading An Apple a Day (From the VA) Keeps the Tax Man Away

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.