OLIVER US WEST-#804698287-V1-LA SAME Executive Order Employment Law

8/10/2019 OLIVER US WEST-#804698287-V1-LA SAME Executive Order Employment Law

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mckennalong.commckennalong.com

Employment Law By ExecutiveOrders For Government Contractors

Richard B. Oliver

[email protected]

October 16, 2014

LA SAME Post

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Richard B. Oliver is a government contracts lawyer located in the firm's LosAngeles office with more than thirty-five years of experience representingclients dealing with a wide range of government contract issues concerningthe Department of Defense and the civilian agencies. In the course of hispractice, he has frequently represented clients at the Government

Accountability Office ("GAO"), the United States Court of Federal Claims("COFC"), the Small Business Administration's ("SBA") Office of Hearingsand Appeals ("OHA"), in state and federal courts, and before administrativeboards of contract appeals, including the Armed Services Board of Contract

Appeals ("ASBCA"). Mr. Oliver has also represented clients in majorcriminal and civil investigations.

Mr. Oliver graduated Phi Beta Kappa from the University of Virginia.

Mr. Oliver received his legal training at Harvard University, where he was aneditor of the Harvard Journal on Legislation.

Richard B. Oliver

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3/18

Political gridlock in Washington DC has thwartedPresident Obamas domestic agenda

Executive orders are an alternative means forforwarding President Obamas agenda

However, Executive Orders and implementingregulations generally only affect government

contractors Substantial impact on economy, impacting 200,000

federal contractors, including many major corporations

Introduction

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There have been a number of employment initiatives thisyear that affect government contractors, including:

Increase in minimum wage to $10.10

DOL requirements for protected veterans and for persons withdisabilities

Ban against discrimination (and possibly requiring affirmativeaction) for LGBT persons

Changes to exempt employees under FLSA and SCA Equal pay for government contractors and whistleblower

protection

Mandatory disclosure of labor law violations

Employment Law Executive Orders

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5/18

Executive Order 13658, issued February 12, 2014, 79 Fed.Reg.9851-54

Raises minimum wage for government contractors to$10.10 for service and construction contracts

Annual revisions to minimum wage

No immediate impact

Effective date is January 1, 2015

Applies to solicitations issued after January 1, 2015

Wage determination must be incorporated into contract

Increase in Minimum Wage

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DoL issued proposed regulations on June 17, 2014, 79Fed. Reg. 34,568-620

Received 6,500 comments

Broad definitions - contracts include permits and licenses

DoL issued final regulations on October 7, 2014, 79 Fed.Reg.60,634-733

Adds 29 C.F.R. Part 10

Applies to SCA, DBA, concessions, & federal land or propertiescontracts (where offer services)

DoL estimates that it will affect 183,814 workers per 2013 data

Almost all SCA and DBA rates already at least $9.85 in 2014

Increase in Minimum Wage

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DoL issued regulations on September 24, 2013, 78 Fed.Reg. 58,682-752, which took effect on March 24, 2014

Protected veterans- VEVRAA

Hiring benchmarks

To meet benchmark, DoL estimates that contractors must hire205,500 more veterans

Data collection

Applicant self-identification Notice to subcontractors

OFCCP record access

Job listing forms

Preventing Discrimination Against Protected

Veterans and Individuals with Disabilities

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Individuals with DisabilitiesSection 503 of theRehabilitation Act of 1974

7% utilization goal

To meet goal, DoL estimates that contractors must hire 594,580individuals with disabilities

Data collection

Applicant self-identification, both pre-offer and post-offer

Notice to subcontractors

Preventing Discrimination Against Protected

Veterans and Individuals with Disabilities

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Ban concerning discrimination against LGBT persons

Executive Order 13672 issued July 21, 2014, 79 Fed. Reg.42,971-72, amending E.O. 11246 & 11478

Bans sexual orientation and gender identity discrimination

DoL will issue implementing regulations

Poses questions of identification

Could include affirmative action requirements

OFCCP Directive 2014-02 issued August 19, 2014 Gender identity discrimination is a form of sex discrimination

Relies on Macy v. Holder EEOC decision

Because a form of sex discrimination, prohibition in place already

Ban on LGBT Discrimination

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10/18

Presidential Memorandum, issued March 18, 2014, 79 Fed.Reg. 15,211-12

For FLSA (and SCA), directs DoL to modernize andstreamline the existing overtime regulations

For executive, professional, and administrative exemptions

Change salary requirements - currently must earn $455 perweek in salary; anticipated increase to about $1,000 per week

Likely to adopt California-style exemption rules, e.g., no multi-tasking credit; max time limits of non-exempt work performed

Designed impactreduce volume of workers qualifying asexempt and thus increase payment of overtime

Changes to Exempt Employees Under FLSA

And SCA

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Executive Order 13665, issued April 8, 2014, 79 Fed. Reg.20,749-50

Amends E.O. 11246

Prohibits discrimination against employee who inquired about,

discussed, or disclosed compensation information

DoL to issue implementing regulations by September 15, 2014

Applies to all contracts entered into after that date

Prohibition already exists for non-management employees underNLRA

Equal Pay and Whistleblower Protection

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Presidential Memorandum issued April 11, 2014, 79 Fed.Reg. 20,751-52

DoL to issue rule by August 8, 2014

Requires contractors and subcontractors to submit summarydata on compensation of employees, including data by sex andrace

DoL to avoid new record keeping requirements


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Proposed DOL regulations issued on August 6, 2014, 79Fed. Reg. 46,562, comments due by November 6, 2014 Requires the submission of summary data on employee

compensation by sex, race, ethnicity, job categories, and otherrelevant data such as hours worked and the number ofemployees

Regulations apply to employers who file EEO1 Reports, havemore than 100 employees, and a contract, subcontract, orpurchase order of at least $50,000 that covers at least 30 days

OFCCP believes voluntary compliance and self-assessments bycontractors will have a significant deterrent effect

Will be used to prioritize investigations and enforcement action


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Fair Pay and Safe Workplaces Executive Order 13673

issued July 31, 2014, 79 Fed. Reg. 45,309-14

Taxpayers should not subsidize bad employment practices

Mandatory disclosure of labor law violations

For each proposal > $500,000

Violation based upon arbitral award, administrative meritdetermination or civil judgment

List for previous 3 years all violations of : Fair Labor Standards Act (FLSA)

Occupational Safety and Health Act (OSHA)

Migrant and Seasonal Agricultural Worker Protection Act

Mandatory Disclosure of Labor Law Violations

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National Labor Relations Act (NRLA)

Davis-Bacon Act (DBA)

Service Contract Act (SCA)

Executive Order 11246 (EEO) Section 503 of Rehabilitation Act

Vietnam Era Veterans Readjustment Assistance Act of 1974

Family and Medical Leave Act

Title VII of the Civil Rights Act

Americans with Disabilities Act of 1990 Age Discrimination in Employment Act of 1967

Executive Order 13658 (Minimum wage of $10.10)

Equivalent state laws as defined by Department of Labor


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Based upon disclosed labor law violations, contracting officer willconsider whether offeror is responsible

For subcontracts > $500,000, subcontractor must disclose its

labor law violations Every 6 months, contractor and subcontractors must update

Contracting officer may refer information to debarring official

Amend FAR so that serious, repeated, willful or pervasive laborlaw violations demonstrate lack of integrity or business ethics

Labor Compliance Advisor created for each agency

Paycheck transparency requirement

Prohibition of mandatory arbitration agreements


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Changes at OFCCP

Increased staffing

New regulations to enforce

Enterprise-wide investigations

Cooperation with EEOC, IRS and DoJ

More aggressive attitude

Others Ramping Up Enforcement

NRLB

DoL

IRS

CA FTB

Increased Enforcement Activity

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