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On December 7, 2021, a federal court in Georgia issued a nationwide injunction prohibiting the federal government from enforcing Executive Order 14042 – the vaccine mandate for federal contractors and subcontractors. The federal contractor mandate applies to roughly one-quarter of the U.S. workforce and affects companies that do business with the federal government.

The States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, various state agencies and certain other employers brought the action alleging that President Biden’s Executive Order exceeded his authority and requesting a preliminary injunction.

Judge R. Stan Baker agreed, stating that he was “unconvinced” that the Federal Property and Administrative Services Act authorized President Biden to direct the type of broad and unprecedented administrative actions contained in Executive Order 14042, adding that such action likely requires Congressional authorization. The court found that the plaintiffs had a likelihood of proving that Executive Order 14042 went beyond mere administration and management of procurement and contracting, and did not fall within the authority actually granted to the President by Congress. Instead, the Court reasoned, Executive Order 14042 works as a “regulation of public health. Judge Baker also rejected the government’s argument that enjoining Executive Order 14042 would permit the continued spread of COVID-19, finding that it would merely maintain the status quo.
Continue Reading Federal contractor vaccine mandate temporarily halted nationwide

On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

Recently, we posted about President Biden’s COVID-19 Action Plan, “Path out of the Pandemic” (the Memo). To recap: the Memo instructs OSHA to develop and issue an Emergency Temporary Standard (ETS) to require all employers with 100+ employees to ensure their workers are vaccinated against COVID-19 or to require them to submit to…

Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.

Background

The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.

Biden priority

On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.Continue Reading Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward

On September 30, 2016, the U.S. Department of Labor issued the long-awaited Final Rule implementing President Obama’s Executive Order 13706, which requires federal contractors (and their subcontractors) to provide workers with a minimum of seven days of paid sick leave. The Rule will impose substantial new obligations on many employers beginning January 1, 2017, and comes as state and local governments increasingly enact mandatory paid leave laws across the country.
Continue Reading DOL Issues Final Rules for Sick Leave for Federal Contractors

This post was also written by Daniel J. Moore.

Just 10 days after taking office, President Obama signed Executive Order 13496, requiring all federal contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA), including their right to join and support unions, and to include in every contract, subcontract, and purchase order, a pledge to honor the employee notice requirements. The U.S. Department of Labor (DOL) has now issued its final rule implementing the Executive Order, specifying how contractors and subcontractors must comply with those requirements, including a poster describing employees’ rights and how they can file claims with the National Labor Relations Board (NLRB), and the penalties employers will face if they fail to comply. The rule will take effect June 21, 2010.

Who Is Affected by Executive Order 13496?

Executive Order 13496 (“the Order”) affects contractors and subcontractors who contract or subcontract with a federal government agency and are covered under the NLRA. The Order does not apply to the federal government, state or local governments, labor unions, or employers who are covered by the Railway Labor Act. The Order also does not apply to prime contracts under the simplified acquisition threshold, currently set at $100,000, or subcontracts of $10,000 or less.Continue Reading Federal Contractors and Subcontractors Must Notify Employees of Right to Unionize

President Obama has signed the Department of Defense Appropriations Act for Fiscal Year 2010 (H.R. 3326). Section 8116 of that Act significantly restricts the ability of defense contractors and subcontractors to enter into or enforce agreements that require employees or independent contractors to arbitrate certain claims.

In particular, section 8116 provides that no funds appropriated…

Just 10 days after taking office, President Obama signed Executive Order 13496, requiring all federal contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA), including their right to join and support unions. On Aug. 3, 2009, the U.S. Department of Labor (DOL) issued a proposed regulation specifying how contractors and subcontractors must comply with that Order, including a poster describing employees’ rights, and how they can file claims with the National Labor Relations Board (Board). Parties wishing to comment on the proposed rule must do so by Sept. 2.

Executive Order 13496

Citing the government’s need to deal with “contractors whose work will not be interrupted by labor unrest,” and a belief that industrial peace is best achieved when employees are “well informed of their rights,” Executive Order 13496 requires most federal departments and agencies to include in virtually all government contracts, provisions that require the contractor to post a notice for employees describing their rights under the NLRA, to follow all DOL rules relating to the Order, and to be subject to penalties for noncompliance that can include debarment from future contracts. The Order exempts two types of contracts: collective bargaining agreements, and contracts for purchases under the “simplified acquisition threshold” of $100,000. The Order also requires contractors to include such provisions in every subcontract they enter into in connection with the government contract. The Order directs the DOL to issue regulations implementing its requirements, and they will take effect when those regulations become final.Continue Reading Labor Department Proposes Rule Requiring Federal Contractors and Subcontractors to Notify Employees of Right to Unionize