Labor & Employment Law Legal Update

Government Contractors and Subcontractors to be Required to Notify Employees of Rights under the National Labor Relations Act

 

By:  Daniel B. Gilmore

The United States Department of Labor’s Office of Labor Management Standards (“OLMS”) recently issued its final rule implementing Executive Order 13496. This Order requires nonexempt Federal departments and agencies to include within their Government contracts specific provisions requiring contractors and subcontractors at any tier to post notices informing their employees of their rights under the National Labor Relations Act (“NLRA”).  The full text of the final rule, which is effective June 21, 2010, may be found at 29 C.F.R. Part 471, which is accessible through the following link to the Federal Register: http://edocket.access.gpo.gov/2010/pdf/2010-11639.pdf

Any covered Government contracts that are based on solicitations issued on or after June 21, 2010, including renewals, must include a provision requiring Federal contractors and subcontractors at any tier to post the required notice.  These posting requirements do not apply to prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000, and do not apply to subcontracts below $10,000.  The text of the employee notice and the provisions that must be inserted into Federal contracts and subcontracts can be found at 29 CFR Part 471 Appendix A and may simply be incorporated by reference.

Content of Posted Notice

The required notice that must be posted lists employees’ rights under the NLRA to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity.  The notice provides examples of unlawful employer and union conduct that interferes with those rights and states how employees may contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or to file complaints.

Obtaining the Required Posters

Copies of the required posters are available in two formats and may be downloaded from the OLMS website:

1. Notice of Employee Rights Under Federal Labor Laws - 11x17-inch one-page format:
   http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf
2. Notice of Employee Rights Under Federal Labor Laws - 11x8.5-inch two-page format:
   http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster2page_Final.pdf

Physical and Electronic Posting

Notices must be posted conspicuously in and around covered plants and offices so that they are prominent and readily seen by employees. This ordinarily means posting where other notices to employees about their jobs are posted.

Contractors and subcontractors who electronically post notices to employees must also post the required notice electronically via a link to the OLMS website where the contractor customarily places other electronic notices to employees about their jobs.  The link can be no less prominent than other employee notices.  Electronic posting cannot be used as a substitute for physical posting.

Translated Posters

Where a significant portion of a contractor's or subcontractor’s workforce is not proficient in English, employee notices in languages spoken by employees must be posted.  OLMS will offer guidance in this regard and will provide translations of the employee notice that may be used to comply with the physical and electronic posting requirements.

Investigations and Sanctions for Non-Compliance

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) may conduct evaluations to determine compliance with these new requirements. Contractors who violate the regulations may be subject to sanctions for non-compliance, including suspension or cancellation of an existing contract, debarment from future Federal contracts and subcontracts, and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions.

Employer Guidance from the OFCCP

In order to offer employers guidance regarding these new requirements, the OFCCP conducted a free webinar on: “How To Comply With Executive Order 13496." 

The PowerPoint Presentation for the webinar is available at
http://www.dol.gov/ofccp/regs/compliance/Contractor_Compliance_presentation.ppt 

To listen to a recording of the audio portion of the June 3 webinar, call 800-333-1825 anytime before July 3.

If you have any questions regarding Executive Order 13496, please contact Dan Gilmore or a member of our Labor & Employment Law Group.