[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3448 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 3448

  To provide for certain contracting requirements to promote fair and 
                safe workplaces, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 11, 2020

 Ms. Smith (for herself, Mr. Blumenthal, Mr. Brown, Ms. Baldwin, Mrs. 
Feinstein, Mrs. Murray, Mrs. Gillibrand, Mr. Van Hollen, Mrs. Shaheen, 
 Mr. Merkley, and Mr. Durbin) introduced the following bill; which was 
 read twice and referred to the Committee on Health, Education, Labor, 
                              and Pensions

_______________________________________________________________________

                                 A BILL


 
  To provide for certain contracting requirements to promote fair and 
                safe workplaces, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Pay and Safe Workplaces Act of 
2020''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Covered contract.--The term ``covered contract'' means 
        a Federal contract for the procurement of property or services, 
        including construction, valued in excess of $500,000.
            (2) Covered subcontract.--The term ``covered 
        subcontract''--
                    (A) means a subcontract for property or services 
                under a Federal contract that is valued in excess of 
                $500,000; and
                    (B) does not include a subcontract for the 
                procurement of commercially available off-the-shelf 
                items.
            (3) Executive agency.--The term ``executive agency'' has 
        the meaning given the term in section 133 of title 41, United 
        States Code.

SEC. 3. PURPOSE.

    The purpose of this Act is to--
            (1) ensure that the purchasing power of the Federal 
        Government is employed to raise labor standards, improve 
        working conditions, and strengthen workers' bargaining power; 
        and
            (2) increase efficiency and cost savings in the work 
        performed by parties who contract with the Federal Government 
        by ensuring that they understand and comply with labor laws, 
        which are designed to promote safe, healthy, fair, and 
        effective workplaces and increase the likelihood of enhanced 
        productivity in the workplace and the timely, predictable, and 
        satisfactory delivery of goods and services to the Federal 
        Government.

SEC. 4. REQUIRED PRE-CONTRACT AWARD ACTIONS.

    (a) Disclosures.--The head of an executive agency shall ensure that 
the solicitation for a covered contract requires the offeror--
            (1) to represent, to the best of the offeror's knowledge 
        and belief, whether there has been any administrative merits 
        determination, arbitral award or decision, or civil judgment, 
        as defined in guidance issued by the Secretary of Labor, 
        rendered against the offeror in the preceding 3 years for 
        violations of--
                    (A) the Fair Labor Standards Act of 1938 (29 U.S.C. 
                201 et seq.);
                    (B) the Occupational Safety and Health Act of 1970 
                (29 U.S.C. 651 et seq.);
                    (C) the Migrant and Seasonal Agricultural Worker 
                Protection Act (29 U.S.C. 1801 et seq.);
                    (D) the National Labor Relations Act (29 U.S.C. 151 
                et seq.);
                    (E) subchapter IV of chapter 31 of title 40, United 
                States Code (commonly known as the ``Davis-Bacon 
                Act'');
                    (F) chapter 67 of title 41, United States Code 
                (commonly known as the ``Service Contract Act'');
                    (G) Executive Order 11246 (42 U.S.C. 2000e note; 
                relating to equal employment opportunity);
                    (H) section 503 of the Rehabilitation Act of 1973 
                (29 U.S.C. 793);
                    (I) section 4212 of title 38, United States Code;
                    (J) the Family and Medical Leave Act of 1993 (29 
                U.S.C. 2601 et seq.);
                    (K) title VII of the Civil Rights Act of 1964 (42 
                U.S.C. 2000e et seq.);
                    (L) the Americans with Disabilities Act of 1990 (42 
                U.S.C. 12101 et seq.);
                    (M) the Age Discrimination in Employment Act of 
                1967 (29 U.S.C. 621 et seq.);
                    (N) title II of the Genetic Information 
                Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et 
                seq.);
                    (O) Executive Order 13658 (79 Fed. Reg. 9851; 
                relating to establishing a minimum wage for 
                contractors); or
                    (P) equivalent State laws, as defined in guidance 
                issued by the Secretary of Labor;
            (2) to require each subcontractor for a covered 
        subcontract--
                    (A) to represent to the offeror and the entity 
                designated by the final rule reissued under subsection 
                (a) of section 7, to the best of the subcontractor's 
                knowledge and belief, whether there has been any 
                administrative merits determination, arbitral award or 
                decision, or civil judgment, as defined in guidance 
                issued by the Department of Labor, rendered against the 
                subcontractor in the preceding 3 years for violations 
                of any of the labor laws and Executive orders listed 
                under paragraph (1); and
                    (B) to update such information every 6 months for 
                the duration of the subcontract; and
            (3) to consider the advice rendered by the entity 
        designated by the final rule reissued under subsection (a) of 
        section 7 or information submitted by a subcontractor pursuant 
        to paragraph (2) in determining whether the subcontractor is a 
        responsible source with a satisfactory record of integrity and 
        business ethics--
                    (A) prior to awarding the subcontract; or
                    (B) in the case of a subcontract that is awarded or 
                will become effective within 5 days of the prime 
                contract being awarded, not later than 30 days after 
                awarding the subcontract.
    (b) Pre-Award Corrective Measures.--
            (1) In general.--A contracting officer, prior to awarding a 
        covered contract, shall, as part of the responsibility 
        determination, provide an offeror who makes a disclosure 
        pursuant to subsection (a) an opportunity to report any steps 
        taken to correct the violations of or improve compliance with 
        the labor laws and Executive orders listed in paragraph (1) of 
        such subsection, including any agreements entered into with an 
        enforcement agency.
            (2) Consultation.--The executive agency's Labor Compliance 
        Advisor designated pursuant to section 6, in consultation with 
        relevant enforcement agencies, shall advise the contracting 
        officer whether agreements are in place or are otherwise needed 
        to address appropriate remedial measures, compliance 
        assistance, steps to resolve issues to avoid further 
        violations, or other related matters concerning the offeror.
            (3) Responsibility determination.--The contracting officer, 
        in consultation with the executive agency's Labor Compliance 
        Advisor, shall consider information provided by the offeror 
        under this section in determining whether the offeror is a 
        responsible source with a satisfactory record of integrity and 
        business ethics. The determination shall be based on the 
        guidelines reissued under subsection (b)(1) of section 7 and 
        the final rule reissued under subsection (a) of such section.
    (c) Referral of Information to Suspension and Debarment 
Officials.--As appropriate, contracting officers, in consultation with 
their executive agency's Labor Compliance Advisor, shall refer matters 
related to information provided pursuant to paragraphs (1) and (2) of 
subsection (a) to the executive agency's suspension and debarment 
official in accordance with agency procedures.

SEC. 5. POST-AWARD CONTRACT ACTIONS.

    (a) Information Updates.--The contracting officer for a covered 
contract shall require that the contractor update the information 
provided under paragraphs (1) and (2) of section 4(a) every 6 months.
    (b) Corrective Actions.--
            (1) Prime contract.--The contracting officer, in 
        consultation with the Labor Compliance Advisor designated 
        pursuant to section 6, shall determine whether any information 
        provided under subsection (a) warrants corrective action. Such 
        action may include--
                    (A) an agreement requiring appropriate remedial 
                measures;
                    (B) compliance assistance;
                    (C) resolving issues to avoid further violations;
                    (D) the decision not to exercise an option on a 
                contract or to terminate the contract; or
                    (E) referral to the agency suspending and debarring 
                official.
            (2) Subcontracts.--The prime contractor for a covered 
        contract, in consultation with the Labor Compliance Advisor, 
        shall determine whether any information provided under section 
        4(a)(2) warrants corrective action, including remedial 
        measures, compliance assistance, and resolving issues to avoid 
        further violations.
            (3) Department of labor.--The Department of Labor shall, as 
        appropriate, inform executive agencies of its investigations of 
        contractors and subcontractors on current Federal contracts for 
        purposes of determining the appropriateness of actions 
        described under paragraphs (1) and (2).

SEC. 6. LABOR COMPLIANCE ADVISORS.

    (a) In General.--Each executive agency shall designate a senior 
official to act as the agency's Labor Compliance Advisor.
    (b) Duties.--The Labor Compliance Advisor shall--
            (1) meet quarterly with the Deputy Secretary, Deputy 
        Administrator, or equivalent executive agency official with 
        regard to matters covered under this Act;
            (2) work with the acquisition workforce, agency officials, 
        and agency contractors to promote greater awareness and 
        understanding of labor law requirements, including 
        recordkeeping, reporting, and notice requirements, as well as 
        best practices for obtaining compliance with these 
        requirements;
            (3) coordinate assistance for executive agency contractors 
        seeking help in addressing and preventing labor violations;
            (4) in consultation with the Department of Labor or other 
        relevant enforcement agencies, and pursuant to section 4(b) as 
        necessary, provide assistance to contracting officers regarding 
        appropriate actions to be taken in response to violations 
        identified prior to or after contracts are awarded, and address 
        complaints in a timely manner, by--
                    (A) providing assistance to contracting officers 
                and other executive agency officials in reviewing the 
                information provided pursuant to subsections (a) and 
                (b) of section 4 and section 5(a), or other information 
                indicating a violation of a labor law in order to 
                assess the serious, repeated, willful, or pervasive 
                nature of any violation and evaluate steps contractors 
                have taken to correct violations or improve compliance 
                with relevant requirements;
                    (B) helping agency officials determine the 
                appropriate response to address violations of the 
                requirements of the labor laws and Executive orders 
                listed in section 4(a)(1) or other information 
                indicating such a labor violation (particularly 
                serious, repeated, willful, or pervasive violations), 
                including agreements requiring appropriate remedial 
                measures, decisions not to award a contract or exercise 
                an option on a contract, contract termination, or 
                referral to the executive agency suspension and 
                debarment official;
                    (C) providing assistance to appropriate executive 
                agency officials in receiving and responding to, or 
                making referrals of, complaints alleging violations by 
                agency contractors and subcontractors of the 
                requirements of the labor laws listed in section 
                4(a)(1); and
                    (D) supporting contracting officers, suspension and 
                debarment officials, and other agency officials in the 
                coordination of actions taken pursuant to this 
                subsection to ensure agency-wide consistency, to the 
                extent practicable;
            (5) as appropriate, send information to agency suspension 
        and debarment officials in accordance with agency procedures;
            (6) consult with the agency's Chief Acquisition Officer and 
        Senior Procurement Executive, and the Department of Labor as 
        necessary, in the development of regulations, policies, and 
        guidance addressing labor law compliance by contractors and 
        subcontractors;
            (7) make recommendations to the agency to strengthen agency 
        management of contractor compliance with labor laws;
            (8) publicly report, on an annual basis, a summary of 
        agency actions taken to promote greater labor compliance, 
        including the agency's response pursuant to this order to 
        serious, repeated, willful, or pervasive violations of the 
        requirements of the labor laws and Executive orders listed in 
        section 4(a)(1); and
            (9) participate in the interagency meetings regularly 
        convened by the Secretary of Labor pursuant to section 
        7(b)(2)(C).

SEC. 7. MEASURES TO ENSURE GOVERNMENT-WIDE CONSISTENCY.

    (a) Federal Acquisition Regulation.--
            (1) In general.--Notwithstanding Public Law 115-11 (131 
        Stat. 75) and section 553 of title 5, United States Code, not 
        later than 1 year after the date of enactment of this Act, the 
        Secretary of Defense, the Administrator of the General Services 
        Administration, and the Administrator of the National 
        Aeronautics and Space Administration shall reissue the final 
        rule entitled ``Federal Acquisition Regulation; Fair Pay and 
        Safe Workplaces'' (81 Fed. Reg. 58562 (Aug. 25, 2016)), subject 
        to paragraph (2).
            (2) Updated dates.--The agencies described in paragraph (1) 
        may, in reissuing the final rule under such paragraph, update 
        any date provided in such final rule as reasonable and 
        necessary.
    (b) Department of Labor.--
            (1) Guidance.--Not later than 1 year after the date of 
        enactment of this Act, the Secretary of Labor shall reissue the 
        guidance entitled ``Guidance for Executive Order 13673, `Fair 
        Pay and Safe Workplaces''' (81 Fed. Reg. 58564 (Aug. 25, 
        2016)). In reissuing such guidance, the Secretary of Labor may 
        update any date provided in such guidance as reasonable.
            (2) Additional activities.--The Secretary of Labor shall--
                    (A) develop a process--
                            (i) for the Labor Compliance Advisors 
                        designated pursuant to section 6 to consult 
                        with the Secretary of Labor in carrying out 
                        their responsibilities under section 6(b)(4);
                            (ii) by which contracting officers and 
                        Labor Compliance Advisors may give appropriate 
                        consideration to determinations and agreements 
                        made by the Secretary of Labor and the heads of 
                        other executive agencies; and
                            (iii) by which contractors may enter into 
                        agreements with the Secretary of Labor, or the 
                        head of another executive agency, prior to 
                        being considered for a contract;
                    (B) review data collection requirements and 
                processes, and work with the Director of the Office of 
                Management and Budget, the Administrator of General 
                Services, and other agency heads to improve such 
                requirements and processes, as necessary, to reduce the 
                burden on contractors and increase the amount of 
                information available to executive agencies;
                    (C) regularly convene interagency meetings of Labor 
                Compliance Advisors to share and promote best practices 
                for improving labor law compliance; and
                    (D) designate an appropriate contact for executive 
                agencies seeking to consult with the Secretary of Labor 
                with respect to the requirements and activities under 
                this Act.
    (c) Office of Management and Budget.--The Director of the Office of 
Management and Budget shall--
            (1) work with the Administrator of General Services to 
        include in the Federal Awardee Performance and Integrity 
        Information System the information provided by contractors 
        pursuant to sections 4(a)(1) and 5(a) and data on the 
        resolution of any issues related to such information; and
            (2) designate an appropriate contact for agencies seeking 
        to consult with the Office of Management and Budget on matters 
        arising under this Act.
    (d) General Services Administration.--
            (1) In general.--The Administrator of General Services, in 
        consultation with other relevant executive agencies, shall 
        establish a single internet website for Federal contractors to 
        use for all Federal contract reporting requirements under this 
        Act, as well as any other Federal contract reporting 
        requirements to the extent practicable.
            (2) Agency cooperation.--The heads of executive agencies 
        with covered contracts shall provide the Administrator of 
        General Services with the data necessary to maintain the 
        internet website established under paragraph (1).
    (e) Minimizing Compliance Burden.--After reissuing the guidance 
under subsection (b)(1) or the final rule under subsection (a), the 
Secretary of Labor or the Secretary of Defense, the Administrator of 
the General Services Administration, and the Administrator of the 
National Aeronautics and Space Administration may, respectively, amend 
such guidance or final rule consistent with the requirements under 
chapter 5 of title 5, United States Code.

SEC. 8. PAYCHECK TRANSPARENCY.

    (a) In General.--Each executive agency entering into a covered 
contract, or covered subcontract, shall ensure that provisions in 
solicitations for such contracts, or subcontracts, and clauses in such 
contracts, or subcontracts, shall provide that, for each pay period, 
contractors or subcontractors provide each individual described in 
subsection (b) with a document containing information with respect to 
such individual for the pay period concerning hours worked, overtime 
hours worked, pay, and any additions made to or deductions made from 
pay.
    (b) Individuals Described.--An individual described in this 
subsection is any individual performing work under a contract or 
subcontract for which the contractor or subcontractor is required to 
maintain wage records under--
            (1) the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et 
        seq.);
            (2) subchapter IV of chapter 31 of title 40, United States 
        Code (commonly referred to as the ``Davis-Bacon Act'');
            (3) chapter 67 of title 41, United States Code (commonly 
        known as the ``Service Contract Act''); or
            (4) an applicable State law.
    (c) Exceptions.--
            (1) Employees exempt from overtime requirements.--The 
        document provided under subsection (a) to individuals who are 
        exempt under section 13 of the Fair Labor Standards Act of 1938 
        (29 U.S.C. 213) from the overtime compensation requirements 
        under section 7 of such Act (29 U.S.C. 207) shall not be 
        required to include a record of the hours worked if the 
        contractor or subcontractor informs the individual of the 
        status of such individual as exempt from such requirements.
            (2) Substantially similar state laws.--The requirements 
        under this section shall be deemed to be satisfied if the 
        contractor or subcontractor complies with State or local 
        requirements that the Secretary of Labor has determined are 
        substantially similar to the requirements under this section.
    (d) Independent Contractors.--If the contractor or subcontractor is 
treating an individual performing work under a covered contract or 
subcontract as an independent contractor, and not as an employee, the 
contractor or subcontractor shall provide the individual a document 
informing the individual of the individual's status as an independent 
contractor.

SEC. 9. COMPLAINT AND DISPUTE TRANSPARENCY.

    (a) In General.--
            (1) Contracts.--The head of an executive agency may not 
        enter into a contract for the procurement of property or 
        services valued in excess of $500,000 unless the contractor 
        agrees that any decision to arbitrate the claim of an employee 
        or independent contractor performing work under the contract 
        that arises under title VII of the Civil Rights Act of 1964 (42 
        U.S.C. 2000e et seq.) or any tort related to or arising out of 
        sexual assault or sexual harassment may only be made with the 
        voluntary consent of the employee or independent contractor 
        after the dispute arises.
            (2) Subcontracts.--The head of an executive agency shall 
        require that a contractor covered under paragraph (1) 
        incorporate the requirement under such paragraph into each 
        subcontract for the procurement of property or services valued 
        in excess of $500,000 at any tier under the contract.
    (b) Exceptions.--
            (1) Contracts for commercial items and commercially 
        available off-the-shelf items.--The requirements under 
        subsection (a) do not apply to contracts or subcontracts for 
        the acquisition of commercial items or commercially available 
        off-the-shelf items (as those terms are defined in sections 
        103(1) and 104, respectively, of title 41, United States Code).
            (2) Employees and independent contractors not covered.--The 
        requirements under subsection (a) do not apply with respect to 
        an employee or independent contractor who--
                    (A) is covered by a collective bargaining agreement 
                negotiated between the contractor or subcontractor and 
                a labor organization representing the employee or 
                independent contractor; or
                    (B) entered into a valid agreement to arbitrate 
                claims covered under such subsection before the 
                contractor or subcontractor bid on the contract covered 
                under such subsection, except that such requirements do 
                apply--
                            (i) if the contractor or subcontractor is 
                        permitted to change the terms of the 
                        arbitration agreement with the employee or 
                        independent contractor; or
                            (ii) in the event the arbitration agreement 
                        is renegotiated or replaced after the 
                        contractor or subcontractor bids on the 
                        contract.

SEC. 10. NEUTRALITY.

    (a) Allowable Costs.--Costs incurred in maintaining satisfactory 
relations between a contractor, and its employees, on a covered 
contract or a subcontractor, and its employees, on a covered 
subcontract (other than those made unallowable in subsection (b) of 
this section), including costs of shop stewards, labor management 
committees, employee publications, and other related activities, are 
allowable.
    (b) Limitation on Federal Funds.--No Federal funds made available 
through a covered contract or covered subcontract may be used to engage 
in activities undertaken to persuade employees, of any entity, to 
exercise or not to exercise, or concerning the manner of exercising, 
the right to organize and bargain collectively through representatives 
of the employees' own choosing or any other activities that are subject 
to the requirements under section 203(b) of the Labor-Management 
Reporting and Disclosure Act of 1959 (29 U.S.C. 433(b)). Examples of 
unallowable costs under this subsection include the costs of--
            (1) preparing and distributing materials;
            (2) hiring or consulting legal counsel or consultants;
            (3) meetings (including paying the salaries of the 
        attendees at meetings held for this purpose); and
            (4) planning or conducting activities by managers, 
        supervisors, or union representatives during work hours.

SEC. 11. IMPLEMENTING REGULATIONS.

    Not later than 9 months after the date of enactment of this Act, 
the Federal Acquisition Regulatory Council shall amend the Federal 
Acquisition Regulation to carry out the provisions of this Act, 
including sections 8 and 9.

SEC. 12. SEVERABILITY.

    If any provision of this Act or the application of any such 
provision to any person or circumstance is held to be unconstitutional, 
the remaining provisions of this Act and the application of such 
provisions to any person or circumstance shall not be affected by such 
holding.

SEC. 13. RULES OF CONSTRUCTION.

    Nothing in this Act shall be construed as--
            (1) impairing or otherwise affecting the authority granted 
        by law to an executive agency or the head thereof; or
            (2) impairing or otherwise affecting the functions of the 
        Director of the Office of Management and Budget relating to 
        budgetary, administrative, or legislative proposals.
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