The federal regulatory agencies responsible for implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O.) 13673, better known to federal contractors as the “blacklisting” E.O. or rule, have finalized implementing regulations and guidance. Under the new rule, some contractors will have to come into compliance as soon as October 25, 2016.
Among other things, E.O. 13673 requires a company bidding on a federal contract valued at more than $500,000 to disclose various labor law “violations” occurring over the previous three years and, if a contract is awarded, update this information every six months during the performance of the contract. Under the Executive Order, an agency contracting officer has the discretion to deny a contract based on the information provided.
The E.O. also establishes a regime for subcontractor disclosures and so-called “assessments,” a “paycheck transparency” provision that requires wage and hour-related notifications be provided to covered employees and independent contractors, and a provision limiting the use of pre-dispute arbitration agreements.
Other than changes with respect to subcontractor reporting and the reporting of state law violations, the final rules and guidance make only minor changes to the original proposals. The final guidance also incorporates a promised “pre-assessment” process under which contractors and subcontractors can ask the Labor Department (DOL) to evaluate their compliance history prior to bidding on a contract or subcontract. Even with these changes, however, the blacklisting rule will impose a significant new reporting burden on many companies that want to do business with the federal government.
The Federal Acquisition Regulatory Council’s (FAR Council) final rule is available here. DOL’s final guidance is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.