There have been slew of changes to employment-related requirements for government contractors. These changes mean more compliance concerns for you, the potential for Department of Labor audits, and the need to update your employment policies, employee notices and job postings, contract language, and more.
This presentation breaks down the major changes and will help you understand what you need to do to comply with the new rules that rolled out in 2015 and 2016. We cover the Service Contract Act (SCA), Fair Pay and Safe Workplaces Executive Order, changes to overtime rules, employee vs. independent contractor issues, and more.
You'll learn:
- The key areas of your employee handbook that need to be updated because of the new rules
- What needs to be updated in your non-compete and confidentiality agreements
- How to conduct a self-audit to make sure your employment practices are clean and ready for a potential DOL visit
- Actions that have been taken by the DOL against government contractors
- How to reduce the risk of future employment law violations
Government Contractors: Stay Compliant with New Employment Laws
1. What Government Contractors Need to Do to
Comply with New Employment Policies & Regulations
Taylor Dean, CPA, CGMA
2. Taylor Dean, CPA, CGMA
• Director of Gross Mendelsohn’s
Government Contractors Group
• Provides financial and compliance
services to government contractors
throughout the Mid-Atlantic region
• Co-founder of Government Contractor
Training and Education Consortium
(GC-TEC)
3. • Updates to Service Contract Act (June 2013)
• Fair Labor Standards Act – Updating and Modernizing Overtime
Regulations
• Establishing Paid Sick Leave for Federal Contractors
• Non-Displacement of Qualified Workers Under Service Contracts
• Establishing a Minimum Wage for Contractors
Updates and New Executive Orders
and Legislation Impacting
Government Contractors
4. • Fair Pay and Safe Workplaces Act
• Strengthening Protections Against Trafficking in Persons in
Federal Contracts
• National Industrial Security Program Operating Manual
(NISPOM) change
• DOL OFFP
‒ VEVRAA & Section 503 Rule
‒ Non-Discrimination based on Gender Identity
Updates and New Executive Orders
and Legislation Impacting
Government Contractors
5. McNamara-O’Hara Service Contract
Act (SCA) (June 2013)
• Contracts in excess of $2,500 must pay service employees in
various classes no less than the wage rates and fringe benefits
found prevailing in the locality (Wage Determination) or the
rates contained in a predecessor contractor’s employment
agreement or collective bargaining agreement for the first year
• For contracts equal to or less than $2,500, contractors are
required to pay the federal minimum wage
• For contracts in excess of $100,000, must pay overtime
6. McNamara-O’Hara Service Contract
Act (SCA) (June 2013)
• Mandates minimum wages and health and welfare (H&W)
fringe benefits for contracts over $2,500
‒ DOL sets H&W each year – current is $4.27 per hour (includes paid
vacation, sick leave and holiday hours) – assuming employees do
not all work the same number of hours, the minimum H&W amount
per employee will vary – max 40 hours per week or 2,080 hours
annually
‒ H&W must be separately stated from wages
7. McNamara-O’Hara Service Contract
Act (SCA) (June 2013)
• H&W benefits are either “bona fide” benefits or cash in
lieu of benefits
‒ Bona Fide H&W Benefits:
‒ Health, dental, vision, accidental insurances
‒ 401(k) contributions on behalf of employee
‒ PTO in excess of Wage Determination (WD) requirements
‒ Educational assistance
8. McNamara-O’Hara Service Contract
Act (SCA) (June 2013)
• Not Bona Fide H&W Benefits:
‒ Amounts required by other provisions of federal or state law
‒ FICA/FUTA/SUTA/workers comp
‒ Extra leave required by state or local law
‒ Vaccine coverage mandated under OSHA
‒ Benefits provided for employer’s convenience – meals, tools, club dues,
etc.
9. Service Contract Act Intersection
with the Affordable Care Act
Under the Affordable Care Act, employers with 50 or more full-time
equivalent (FTE) employees must offer affordable minimum health
insurance coverage or risk a penalty if any employee claims a tax
credit to purchase his/her own coverage through the health care
exchanges
10. Service Contract Act Intersection
with the Affordable Care Act
Problem #1:
Technically, since this is a provision of federal law, the cost to
provide this insurance does not qualify as part of the H&W
minimum, therefore, if you have 50 or more FTE, under SCA, you
will need to subsidize HI + H&W
• There is an exception if the plan starts prior to 1/1/17 – HI will count towards
H&W
• Plans effective after 1/1/17 are under consideration by the IRS and may not
qualify
11. Service Contract Act Intersection
with the Affordable Care Act
Problem #2:
SCA and the Davis Bacon Act for construction contractors allow cash
in lieu of H&W
• Technically, paying cash in lieu of H&W does not qualify because the ACA requires a
health plan be sponsored by the employer. When cash is paid to an employee as H&W,
the employer cannot require the employee to spend the money on health insurance.
• If an employer is paying cash in lieu of benefits, it would also need to subsidize a health
care plan – HI + H&W
• ACA/SCA Temporary Safe Harbor: If employer is offering a health plan and cash in lieu,
and the health care policy’s plan year starts prior to 1/1/2017, the cash in lieu can be
used to demonstrate affordability. For plans commencing after 1/1/2017, the IRS will
make a determination.
12. Fair Labor Standards Act (FSLA) –
Updating and Modernizing Overtime
Regulations
• Enacted to ensure that extra work means extra pay for “white-
collar” employees making less than $22.825 per hour
‒ Employers can raise salary and keep the employee exempt from overtime if
the employees meet the duties test
‒ Pay overtime (time and a half) in addition to employee’s current salary when
necessary
‒ Evaluate and realign hours and staff work load to eliminate or reduce
overtime
13. • Sets the standard salary level at the 40th percentile of earning of
full-time salaried workers in the lowest-wage Census Region,
currently the South ($913 per week; $47,476 annually for a full-
year worker) or $22.825 per hour
• Sets the total annual compensation requirement for highly
compensated employees subject to minimal duties test to the
annual equivalent of the 90th percentile of full-time salaried
workers nationally ($134,004)
Fair Labor Standards Act (FSLA) –
Updating and Modernizing Overtime
Regulations
14. • Expands definition of “service employee” under SCA to include
individuals employed in a bona fide executive, administrative or
professional capacity
• More SCA covered employees must receive SCA benefits such
as H&W, Holidays, Vacation
• Employers will need to classify newly covered SCA employees in
the correct Wage Determination categories. Wages may rise.
Fair Labor Standards Act (FSLA) –
Updating and Modernizing Overtime
Regulations
15. Establishing Paid Sick Leave for
Federal Contractors – EO 13706
• Provide up to seven days (56 hours) of paid sick leave annually,
including paid leave for family care
• Applies to certain “new” contracts on or after January 1, 2017
‒ A procurement contract for construction services covered by Davis-Bacon Act
‒ A contract for services covered by the Services Contract Act
‒ A contract for concessions, including any concessions contract excluded from
coverage under SCA by DOL regulations
‒ A contract in connection with federal property or lands and related to offering
services for federal employees, their dependents or the general public
16. • Does NOT apply to:
‒ Prime contracts and subcontracts for the “manufacturing or furnishing of
materials, supplies, articles, or equipment” for use on a covered contract; and
‒ “A significant portion of commercial items contracts” including “commercial
supply contracts subject to the Walsh-Healey Public Contracts Act”
• State and local requirements – at least five states, 29 cities, one
county and Washington, DC have paid sick leave laws.
Contractors are NOT exempt from complying with the
requirements of state and local laws.
Establishing Paid Sick Leave for
Federal Contractors – EO 13706
17. • Other Paid Sick Leave Requirements - Does not excuse a
contractor from a collective bargaining agreement requiring
greater paid sick leave or leave rights than those established
under the EO and rule
• The prime contractor and any upper-tier contractor shall be
responsible for the compliance by any subcontractor or lower-
tier subcontractor, whether or not clause was included in the
subcontract
• Must be separately tracked from “PTO”
Establishing Paid Sick Leave for
Federal Contractors – EO 13706
18. Non-Displacement of Qualified
Workers Under Service Contracts –
EO 13495
• Effective 1/18/2013
• Workers on a federal service contract who would otherwise lose
their jobs as a result of the completion or expiration of a contract
be given the right of first refusal for employment with the
successor contractor
19. Non-Displacement of Qualified
Workers Under Service Contracts –
EO 13495
• Applies to all service contracts (prime and subcontractor) above
the simplified acquisition threshold (currently $150,000) and
their solicitations, except those excluded, that succeed
contracts for the same or similar service at the same location
• A successor subcontractor may reduce the size of the
workforce, may give first preference to certain of its own
employees and may offer employment to the predecessor’s
employees in positions for which they are qualified other than
those which they held previously
20. Establishing a Minimum Wage for
Contractors – EO 13685
• $10.10 per hour, beginning January 1, 2015 with annual
updated on 1/1 by Secretary of Labor
• 9/20/16 – rate for 1/1/2017 is $10.20
• Beginning 1/1/17, tipped employees performing work on or in
connection with covered contracts must be paid a cash wage of
at least $6.80 per hour
21. Fair Play and Safe Workplaces Act
(FPSWA) – EO 13673
• Requires contractors to self report violations of 14 different labor
laws and mandates that agencies consider those reported
violations in responsibility determinations during bidding process
and then subsequent reporting during contract performance.
Pre-award in SAM and semi-annual reporting thereafter.
• Gradual implementation:
‒ 10/25/16: new solicitations worth $50 million or more (CAS covered contracts)
‒ 4/25/17: new solicitations worth $500,000 or more – does not apply to
Commercial Off-the-shelf (COTS) items
‒ 10/25/17: subcontractor sections effective
22. Fair Play and Safe Workplaces Act
(FPSWA) – EO 13673
• Subcontractors report directly to DOL, however, will need to
certify to Primes and must report new violations to primes
‒ Note, DOL has three days to make Responsibility Determination for
subcontractors. If DOL does not make such a determination, prime
must make it, however, DOL will make one after the fact.
• Initial Look-Back is to 10/25/15 and then within past three years
23. Fair Play and Safe Workplaces Act
(FPSWA) – EO 13673
• Includes:
‒ Violations where a final determination has not been issued
‒ Determinations on appeal
‒ Civil Judgements – even if confidential
‒ Arbitral awards or decisions – even if confidential
24. • Labor Compliance Agreements can be entered into post-award
• New violations that occur while bids are pending are reportable
• Existence of Labor Compliance Agreements are public
Fair Play and Safe Workplaces Act
(FPSWA) – EO 13673
25. Fair Play and Safe Workplaces –
Component #2: Paycheck
Transparency and Arbitration
• For employees on covered contracts covered by FLSA, DBA,
SCA or equivalent state or local laws:
‒ Paychecks must include information about pay, hours worked, overtime
hours and any additions or deductions from pay and overtime exempt
employees notice of their status
‒ Will require conversion to weekly reporting for those with bi-monthly or
monthly pay periods
‒ Effective 1/1/2017
26. • Written notice must be provided if individual is categorized as
independent contractor
• Bans contractors that enter into covered contracts over $1
million, from requiring employees to agree to mandatory pre-
dispute arbitration claims arising under Title VII of the Civil
Rights Act of 1964 or torts related to sexual assault or sexual
harassment
Fair Play and Safe Workplaces –
Component #2: Paycheck
Transparency and Arbitration
27. Steps to Ensure Compliance with and
Further Considerations of Fair Play
and Safe Workplaces Rule
1. Contractor needs to evaluate their current labor and
government compliance systems and incorporate the new
requirements into those compliance systems – Federal, State,
Local, International
‒ Make sure that breadth and depth of documentation is adequate for 14
major labor laws/regs
‒ HR, Operations, Corporate versus satellite offices
‒ OSHA compliance at facilities – CONUS and OCUNUS
‒ Subcontractors – CONUS & OCONUS
28. 2. Contractors will have to evaluate potential labor violations to
determine how they should be treated in light of the new
regulations
3. Contractors will have to review and evaluate previous violations
and create mitigation narratives and retrieve documents for
each labor violation
‒ Need to show violation is an aberration and not a corporate wide or
pervasive issue
‒ Document violation – action – remediation – monitoring
Steps to Ensure Compliance with and
Further Considerations of Fair Play
and Safe Workplaces Rule
29. 4. Contractors will have to update subcontract agreements to
include reporting requirements and changes to labor laws. In
addition, contractors will need to explain to agency/customer if
they continue to use a subcontractor that DOL deems to not be
responsible.
‒ Update subcontracts – ability to terminate if DOL determines not
responsible
Steps to Ensure Compliance with and
Further Considerations of Fair Play
and Safe Workplaces Rule
30. 5.GSA may use a “mass mod” to include labor law provisions into
existing GSA Schedules
‒ Complicates reporting requirements and accelerates time frame for
implementation
6.Proposal teams need to know a company’s labor compliance
history in order to know what to disclose to an agency and when
7.Contractors need to understand the types of violations that may
trigger an agency requiring an LCA or denial of award
Steps to Ensure Compliance with and
Further Considerations of Fair Play
and Safe Workplaces Rule
31. 8. Organization needs to be educated about Labor Compliance
Agreements (LCAs) and whether terms presented in such
agreements are acceptable. LCAs should be evaluated by in-
house or outside counsel.
9. Contractors are still responsible for their subcontractors and
ensuring their subcontractors are sufficiently responsible
10. Appeals and higher-level determinations of violations will have
the effect of lengthening the time a violation is reportable
11. All of the above are likely to trigger more bid protests
Steps to Ensure Compliance with and
Further Considerations of Fair Play
and Safe Workplaces Rule
32. BREAKING NEWS
On 10/24/16, a federal district court judge for Eastern District of
Texas issues a nationwide preliminary injunction prohibiting key
provisions of the rule from taking effect – portions of the Rule
“relating to new reporting and disclosure requirements regarding
labor law violations” and “the restriction on arbitration agreements.”
This does not impact the paycheck transparency provisions which
go into effect on 1/1/2017.
Steps to Ensure Compliance with and
Further Considerations of Fair Play
and Safe Workplaces Rule
33. Strengthening Protections Against
Trafficking in Persons in Federal
Contracts – EO 13627
• Human trafficking includes commercial sex as well as labor
trafficking (illegal and under age workers)
• Zero-tolerance policy – failure to comply means possible
penalties
• Requirement to consider subcontractors – primes must
effectively police their global supply chains
‒ Will require policies and procedures to document this consideration
• Similar laws are being enacted by states (CA) and countries (UK)
34. National Industrial Security Program
Operating Manual (NISPOM) Change
• Reaction to cyber security threats – WikiLeaks and release of
other government and corporate data
• Contractors must implement a program by November 30, 2016
• Must appoint an Insider Threat Program Senior Official (ITPSO)
35. • Program must:
‒ Gather, integrate and report relevant and credible information indicative of
a potential or actual insider threat from cleared contractor personnel
‒ Detect insiders who pose a risk to classified information
‒ Mitigate the risk of an insider threat
National Industrial Security Program
Operating Manual (NISPOM) Change
36. • Program must:
‒ Industrial Security Letter – provides guidelines of 13 standards for security
clearances
‒ Protects intellectual property of company along with government data
‒ IT analysis requirement to track behavioral analytics – Requires monitoring
by contractor of employees for deviations in behavior
‒ Heavy downloads, change in sites accessed, folders or data accessed
‒ Obligation to train employees – notify them of requirements and impacts to
their privacy
‒ Notify government with any concerns
National Industrial Security Program
Operating Manual (NISPOM) Change
37. DOL – OFCCP – Office of Federal
Contract Compliance Programs:
VEVRAA & Section 503 Rule
The Vietnam Era Veterans Readjustment Assistance Act
(VEVRAA) requires contractors to annually adopt a benchmark
for hiring veterans
• That benchmark is to be based on the national percentage of veterans in the
workforce – currently 8% – or their own benchmark based on the best
available data, according to the OFCCP announcement
• Document and update annually several quantitative comparisons for the
number of veterans who apply for jobs and the number of veterans hired.
Data must be maintained for three years.
38. The Vietnam Era Veterans Readjustment Assistance Act
(VEVRAA)
• Requires contractors to invite applicants to self-identify –
cannot require them to self-identify
• The rule also clarifies job listings requirements and subcontract
requirements
• Effective date is 3/24/2014
DOL – OFCCP – Office of Federal
Contract Compliance Programs:
VEVRAA & Section 503 Rule
39. Section 503 of the Rehabilitation Act requires annual goal for
federal contractors and subcontractors that 7% of each job group
in their workforce be qualified individuals with disabilities
• The rule doesn’t establish a quota, but it does require
contractors to take specific actions in the areas of recruitment,
training, record keeping, and policy dissemination that are
similar to those that previously have been required to promote
workplace equality for women and minorities
DOL – OFCCP – Office of Federal
Contract Compliance Programs:
VEVRAA & Section 503 Rule
40. Section 503 of the Rehabilitation Act
• Document and update annually several quantitative comparisons for
the number of veterans who apply for jobs and the number of
veterans hired. Data must be maintained for three years.
• Require contractors to invite applicants to self-identify – cannot
require them to self-identify
• The rule also clarifies job listings requirements and subcontract
requirements
• Effective date is 3/24/2014
DOL – OFCCP – Office of Federal
Contract Compliance Programs:
VEVRAA & Section 503 Rule