fair pay and safe workplaces executive order - the new rules (what you need to know)

WEBINAR Fair Pay & Safe Workplaces Executive Order

Fair Pay and Safe Workplaces Executive Order

The New Rules –What You Need to Know

Gary CowanDirector of Compliance, America's Job Exchange

Laura MitchellPrincipal

Jackson Lewis P.C.


About Laura Mitchell

Laura Mitchell is a Principal in the Denver, Colorado office of Jackson

Lewis P.C. She is on the leadership team for the firm’s Government

Contractor Industry Group and a member of the firm’s Affirmative Action

Compliance & OFCCP Defense practice group.

Laura spends a good deal of her time counseling government

contractors on their ever-expanding compliance obligations.

Laura also assists clients with the drafting of affirmative action plans,

representing government and non-government contractors in Office of

Federal Contract Compliance Programs (OFCCP) matters, preparing

for and defending OFCCP audits, and counseling employers on issues

stemming from OFCCP regulations.


Disclaimer

Jackson Lewis P.C. has prepared the materials contained

in this presentation for the participants’ reference and

general information in connection with education seminars

presented by the firm and its attorneys. Attendees should

consult with counsel before taking any actions that could

affect their legal rights and should not consider these

materials or discussions about these materials to be legal

or other advice regarding any specific matter.


Agenda

What & Why?

Overview of Requirements

• FAR Final Rule

• DOL Guidance

Executive Order and Rules Blocked – What Does That Mean?

What Should Contractors Do Now?


What & Why?


Executive Order and Final Regulations

“Crackdown” on federal contractors with labor law

violations

Contractors with significantviolations should not get lucrative gov’t contracts

Contractors with significantlabor violations are not

“responsible” contractors -lack of integrity orbusiness ethics

Labor violations now considered in determination

of whether bidder forfederal procurement

contract/subcontract is “responsible”


Does not apply to pre-existing contracts

3 Components of FP & SW

Arbitration:

certain pre-dispute

arbitration

agreements

prohibited

Pay

Transparency:

provide pay data

and information to

workers and

independent

contractors on

covered contracts

Reporting:

disclose 3 years of

“labor law

decisions”

(violations) for

consideration

when bidding on

procurement

contractsSemi-annual updates during term of contract


Impact & Potential Consequences

Creates onerous and detailed information gathering and reporting requirements

DOL looking to push contractors and subcontractors into “Labor Compliance Agreements” or other formal agreements

Puts premium on internal compliance programs including self-audits and other compliance initiatives


Impact & Potential Consequences

Necessity of strategic planning regarding resolution of agency complaints, charges investigations, enforcement proceedings, arbitration & private litigation

Consideration of subcontractors labor law record

Denial of opportunity for contract awards

Loss of contract during contract performance period

Referral for suspension or debarment


Overview of Requirements


Fair Pay & Safe Workplaces

• October 25, 2016 – April 24, 2017: Bidders for procurement contracts on solicitations of $50 million or more will be required to disclose labor law decisions

• Dating back to October 25, 2015

• April 25, 2017: Bidders for procurement contracts on solicitations exceeding $500,000 will be required to disclose labor law decisions

• October 25, 2017: Bidders for subcontracts exceeding $500,000 will be required to report labor law decisions, unless the subcontract is for commercially-available off-the-shelf items (COTS)

• Each legal entity is responsible for reporting only its labor law decisions – e.g. parent need not report for subsidiary

Reporting Requirements - Labor Law Decisions


What Must Be Disclosed?

• “Rendered” during the (phased-in) three year period preceding contract solicitation;

• Every six months during performance of awarded contract.

All “Labor Law Decisions”:

• Administrative merits determinations;

• Civil judgments;

• Arbitral awards or decision;

• Resulting from a violation of any of 14 labor laws and state law equivalents.

Labor Law Decisions are:


14 “Labor Laws”

FLSA OSHA NLRA FMLA

Davis-Bacon Act Service Contract Act Title VII ADA

ADEAExecutive Order

11246 VEVRAA

Section 503 of the Rehabilitation Act

Executive Order 13658

(federal contractor min. wage)

Migrant and Seasonal

Agricultural Worker Protection Act

State law equivalents (for now includes only OSHA approved plans)



Key Definitions:

Administrative merits determination include an

exhaustive/exclusive list of notices or findings issued by an

enforcement agency following an investigation

Must be reported whether final or subject to appeal or

further review



Administrative Merits Determination

• WH–56 ‘‘Summary of Unpaid Wages’’ form;

• Letter indicating that an investigation disclosed a violation of ANY provision of the Fair Labor Standards Act or a violation of the Family Medical Leave Act, Service Contract Act, Davis-Bacon Act, or Executive Order 13658;

• WH–103 ‘‘Employment of Minors Contrary to The Fair Labor Standards Act’’ notice;

• Letter, notice, or other document assessing civil monetary penalties;

• Letter that recites violations concerning the payment of special minimum wages to workers with disabilities under section 14(c) of the FLSA or revokes a certificate that authorized the payment of special minimum wages;

• WH–561 ‘‘Citation and Notification of Penalty’’ for violations under the OSH Act’s field sanitation or temporary labor camp standards;

• Order of reference filed with an administrative law judge.

From the DOL’s Wage and Hour Division:




• Citation;

• Imminent danger notice;

• Notice of failure to abate;

• Any state equivalent.

From DOL’s Occupational Safety and Health Administration (OSHA) or state agency designated to administer OSHA-approved State Plan:

• Show Cause Notice for failure to comply with requirements of E.O. 11246, Section 503 of the Rehabilitation Act, or the Vietnam Era Veterans

From the DOL’s Office of Federal Contract Compliance Programs (OFCCP):




• A letter of determination that reasonable cause exists to believe that an unlawful employment practice has occurred or is occurring.

• A civil action filed on behalf of the EEOC

From the Equal Employment Opportunity Commission (EEOC):

• A complaint issued by any Regional Director

From the National Labor Relations Board (NLRB):




Other “catch-all” categories:

A complaint filed by or on behalf of an enforcement agency with

a federal or State court, an administrative judge, or an

administrative law judge alleging that the contractor or

subcontractor violated any provision of the labor laws

Any order or finding from any administrative judge,

administrative law judge, the DOL’s Administrative Review

Board, the Occupational Safety and Health Review Commission

or State equivalent, or the NLRB that the contractor or

subcontractor violated any provision of the labor laws



Civil Judgements

• Determined that the contractor or subcontractor violated any provision of the labor laws or;

• Enjoined or restrained the contractor or subcontractor from violating any provision of the labor laws;

• Includes judgments and orders that are not final or are subject to appeal;

• Includes summary judgment (including partial), consent and default judgments if there is a determination in the judgment of a violation;

• Does not include private settlements where lawsuit is dismissed without any judgment being entered.

Any judgment or order entered by any state or federal court which:

New - Does not include temporary restraining orders and offers of judgment pursuant to Federal Rule of Civil Procedure 68.



Arbitral Award or Decision

• Determined that the contractor or subcontractor violated any provision of the labor laws or;

• Enjoined or restrained the contractor or subcontractor from violating any provision of the labor laws;

• Includes awards or order that are not final or are subject to being confirmed, modified or vacated by a court.

Any award or order by an arbitrator or arbitral panel in which the arbitrator or panel:

Includes proceedings that are private or confidential


Agency Assessment

DOL Guidance directs agencies on how to evaluate reported violations including:

• Definitions of:

• Serious;

• Repeated;

• Willful;

• Pervasive.

Remediation of the violation by the contractor;

Other mitigating factors;

Determinations and agreements between contractors and enforcement agencies.


Subcontractors

Subcontractors will report labor law

decisions to DOL

DOL will provide guidance to

subcontractor

Subcontractor reports guidance to Contractor

Contractor makes “responsibility” determination


Pay Transparency Disclosures

January 1, 2017: Bidders for contracts on solicitations exceeding $500,000 will be required to:

Provide a Wage Statement to all individuals performing work

under a covered contract subject to wage record requirements

under the Fair Labor Standards Act (FLSA), the Davis-Bacon Act

(DBA), or the Service Contract Act (SCA)

Provide notice to independent contractors working under a

covered contract of their status as independent contractors


Pre-Dispute Arbitration Agreements

October 25, 2016: Contractors and subcontractors with

contracts resulting from solicitations exceeding $1 million

will be prohibited from entering into new mandatory,

pre-dispute arbitration agreements covering

Title VII or sexual assault/harassment claims

This prohibition does not apply to subcontracts for COTS


Executive Order and Rules Blocked –

What Does That Mean?


FP & SW Lawsuit

• Exceed the Executive Branch’s authority

• Are preempted by the NLRA and other federal laws

• Violate the constitutional rights of government contractors

Alleges the EO and its Rules:

• Labor law violation disclosure requirements

• Restriction on use of arbitration agreements

Night before rules went into effect, Texas Judge ordered a nationwide preliminary injunction blocking

Pay transparency requirement (effective Jan. 1, 2017) remains intact

Stay tuned! Government will likely file an appeal, and there will be a full hearing on the request for a permanent injunction


What Should Contractors

Do Now?


Action Steps

Determine which legal entity within the company is bidding on or is awarded a covered federal contract

Identify legal entity stakeholders who need to be informed about impact and directly involved in internal assessments and reporting obligations

Budget for additional personnel and data collection resources to gather, assess, and report on required information

Develop plan to centralizing labor law issue management by legal entity

Have contracts or government affairs group contact a designated person in the legal department who can determine whether the contract is a covered contract and with what regulation components the company will need to comply


Action Steps

Confirm any existing administrative merits determinations, arbitral awards or decisions or civil judgments against each legal entity within the company

Review current arbitration agreements and consider:

• Expediting execution of pending agreements; defining contractor narrowly to limit impact of provision to employees of the “contractor” at issue; and modifying arbitration agreements entered after the contractor bids on a contract covered by Section 6 to include language addressing the Order

Review hourly employee pay stubs to ensure compliance with new wage statement requirements

Confirm that offer letters, or other writings provided to exempt employees provide notice of exempt status

Identify independent contractors and prepare a statement to them notifying them of IC status


Questions for Laura?

For additional news and insights on the OFCCP and EEO compliance,

visit our Affirmative Action & OFCCP Law Advisor blog:

http://www.affirmativeactionlawadvisor.com/

http://www.affirmativeactionlawadvisor.com/


America’s Job Exchange has been a pioneer in online recruitment and compliance from the very beginning, having evolved from America’s Job Bank which was

founded by the Department of Labor in 1995. We keep true to the original mission of America’s Job Bank assisting Federal Contractors meet OFCCP regulations for

online job postings and distribution.

OUR MISSION

We believe that a diverse workforce is beneficial to every company and its employees. Our mission is to provide the best tools, resources and

information to connect employers and diverse job seekers.

About America’s Job Exchange


The AJE Difference

Complete SolutionReceive unparalleled value when you bundle our products and services for recruitment advertising and compliance.

Competitive PricingThe AJE solution is customizable and priced based on your business needs with variables such as size, hiring forecast and budget.

Breadth of Distribution NetworkBroad network of partners and affiliates including recruitment media agencies, technology providers, associations and states.

Tools and SupportAJE’s tools allow you to stay on top of your outreach efforts and our team is here to support you every step of the way.

Clients choose America’s Job Exchange for OFCCP compliance because AJE offers a comprehensive solution for a great value.

CLIENTELE

TRACK RECORD

REPUTATION


Laura MitchellPrincipal,Jackson Lewis P.C.

[email protected]

Contact Information

www.jacksonlewis.com


Gary CowanDirector of Compliance,America's Job Exchange

[email protected](o) 978-946-7928(c) 617-997-6477

Contact Information

www.americasjobexchange.com


Our Webinars Are Now Monthly

EEOC recently proposed that employers annually

submit detailed pay, gender and race data for all

employees beginning in 2018.

Pay Equity is "Comp"licated –New Rules, New Reporting, and Responding to the

Rising Tide of Pay Discrimination Claims

Laura MitchellShareholder,

Jackson Lewis P.C.

Presenter

Tune into our next webinar to learn more about

these aggressive state fair pay laws and the

growing pressure from activist investors on

companies to guarantee "pay equality."

December 13, 2016 1:00-2:00pm ET


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fair pay and safe workplaces executive order - the new rules (what you need to know)

Recruiting & HR