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 Cowan
Director of Compliance,
America's Job Exchange
Laura Mitchell
Principal
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 significant
violations should not get
lucrative gov’t contracts
Contractors with significant
labor violations are not
“responsible” contractors -
lack of integrity or
business ethics
Labor violations now
considered in determination
of whether bidder for
federal 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
contracts
Semi-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
ADEA
Executive 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/

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 Solution
Receive unparalleled value when you bundle our products and services
for recruitment advertising and compliance.
 Competitive Pricing
The AJE solution is customizable and priced based on your business
needs with variables such as size, hiring forecast and budget.
 Breadth of Distribution Network
Broad network of partners and affiliates including recruitment media
agencies, technology providers, associations and states.
 Tools and Support
AJE’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 Mitchell
Principal,
Jackson Lewis P.C.
Laura.Mitchell@jacksonlewis.com
303.225.2382
Contact Information
www.jacksonlewis.com

Gary Cowan
Director of Compliance,
America's Job Exchange
gcowan@americasjobexchange.com
(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 Mitchell
Shareholder,
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

Thank You!
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