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NRCA issues a statement about the Department of Labor's final regulation to implement President Obama's "Fair Pay and Safe Workplaces" Executive Order

Aug. 31, 2016

On Aug. 25, the Department of Labor (DOL) issued a final regulation to implement President Obama's "Fair Pay and Safe Workplaces" Executive Order, which contains new requirements for contractors bidding on federal contracts. The regulation will begin to take effect Oct. 25, 2016, and be phased in to full implementation by Oct. 25, 2017.

NRCA strongly opposed this regulation when it was proposed by DOL in 2015 and submitted detailed comments outlining NRCA members' concerns with the regulation. The primary concerns are the regulation will increase costs and provide new risks for employers involved in federal contracting while doing little if anything to make workplaces safer or increase worker compensation. In addition, NRCA believes the new requirements go beyond the statutory authority granted the executive branch by Congress. NRCA's comments urged DOL to withdraw the regulation. Click here to view the comments.

The final rule, sometimes referred to as the "blacklisting" regulation, will impose new obligations on most government contractors. Companies bidding on qualifying contracts will have to disclose any violations of 14 federal labor laws (and some state law equivalents) that occurred within the past three years, including violations of safety and health rules, collective bargaining, family and medical leave rules, and civil rights protections. New federal compliance officers will determine whether such violations will disqualify the contractor from receiving the contract. Contractors and subcontractors will be required to disclose such violations every six months.

  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act of 1970 (including OSHA-approved state plans equivalent to state laws)
  • The Migrant and Seasonal Agricultural Worker Protection Act
  • The National Labor Relations Act
  • 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act
  • 41 U.S.C. chapter 67, also known as the Service Contract Act
  • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)
  • Section 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans' Readjustment Assistance Act of 1972 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974
  • The Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act of 1990
  • The Age Discrimination in Employment Act of 1967
  • Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors)
Although the order also covers equivalent state laws, with the exception of OSHA-approved state plans, equivalent state laws will not be covered in the current guidance and rule; a separate rulemaking will be needed to implement these.

Effective dates for the regulation are listed below:
  • Sept. 12, 2016: Voluntary preassessment begins for interested contractors.
  • Oct. 25, 2016: The rule takes effect. Mandatory disclosure of labor compliance history begins for all prime contractors under consideration for contracts with a total contract value greater than or equal to $50 million. Companies with federal contracts of $1 million or more are prohibited from requiring their workers to enter into pre-dispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act or from torts related to sexual assault or harassment except where valid contracts already exist and remain unmodified.
  • Jan. 1, 2017: The paycheck transparency clause takes effect, requiring contractors to provide wage statements and notice of any independent contractor relationship to their covered workers.
  • April 25, 2017: The total contract value above which prime contractors must make disclosures is reduced to $500,000.
  • Oct. 25, 2017: Mandatory disclosure begins for all subcontractors under consideration for covered subcontracts with a total contract value greater than or equal to $500,000.
Click here to view the complete final regulation, along with accompanying DOL guidance, amendment to the original Executive Order and other related information on DOL's website.

For more information, please contact NRCA's Washington, D.C., office at (800) 338-5765.

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