President Obama’s controversial 2014 Executive Order (E.O.) 13673, the Fair Pay and Safe Workplaces Executive Order, commonly known as the “blacklisting” order, requires a company bidding on a federal contract valued at more than $500,000 to disclose to the contracting agency yet-to-be-defined labor law violations that occurred over the previous three years. The E.O. also gives an agency contracting officer the discretion to deny a contract based on information provided.
E.O. 13673 assigns the responsibility for promulgating implementing regulations to the Federal Acquisition Regulatory (FAR) Council, which is responsible for coordination and administration of government-wide procurement policy. In addition, the E.O. tasks the Department of Labor (DOL) with issuing guidance to contractors regarding implementation of the E.O. and the FAR Council’s regulations. These agencies published proposals in May of last year, but final regulations and guidance have yet to be issued.
Despite the absence of final implementing regulations and guidance as to how the E.O. is to be applied and enforced, the National Labor Relations Board (NLRB) has gone ahead with its own implementation plan in a thinly disguised attempt to cajole employers into settling alleged labor law violations.
On July 1, 2016, the NLRB issued a memorandum to its field offices listing additional data points it will collect from employers charged with a labor law violation in anticipation of submitting that information to the federal acquisition system for use by contracting agencies.
Members of the Equal Employment Advisory Council (EEAC) can read more here.