[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)]
[Rules and Regulations]
[Pages 58654-58768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19678]
[[Page 58653]]
Vol. 81
Thursday,
No. 165
August 25, 2016
Part III
Department of Labor
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Office of the Secretary
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48 CFR Parts 22 and 52
Guidance for Executive Order 13673, ``Fair Pay and Safe Workplaces'';
Final Guidance
Federal Register / Vol. 81 , No. 165 / Thursday, August 25, 2016 /
Rules and Regulations
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DEPARTMENT OF LABOR
Office of the Secretary
48 CFR Parts 22 and 52
ZRIN 1290-ZA02
Guidance for Executive Order 13673, ``Fair Pay and Safe
Workplaces''
AGENCY: Department of Labor.
ACTION: Final guidance.
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SUMMARY: The Department of Labor (the Department) is publishing final
guidance (the Guidance) to assist the Federal Acquisition Regulatory
Council (the FAR Council) and Federal contracting agencies in the
implementation of Executive Order 13673, Fair Pay and Safe Workplaces.
Executive Order 13673 (the Order) contains new requirements designed to
increase efficiency and cost savings in the Federal contracting
process. By law, Federal agencies already must contract only with
``responsible'' sources. Among other directives, the Order provides
explicit new instructions for Federal contracting officers to consider
a contractor's compliance with certain Federal and State labor laws as
a part of the determination of contractor ``responsibility'' that
contracting officers presently must undertake before awarding a Federal
contract. In addition, the Order directs the FAR Council to propose the
rules and regulations necessary to carry out the Order and the
Department to develop guidance to help implement the new requirements.
In this final Guidance, the Department provides detailed definitions
for various terms used in the Order and the FAR rule to categorize and
classify labor law violations, and the Department provides a summary of
the processes through which contracting agencies will assess a
contractor's overall record of labor law compliance and carry out their
other duties under the Order.
DATES: This final Guidance is being published simultaneously with the
FAR Council's final rule. The final FAR rule is published elsewhere in
this issue of the Federal Register and is effective on October 25,
2016. Contractors and Federal agencies may use this Guidance beginning
August 25, 2016.
FOR FURTHER INFORMATION CONTACT: Stephanie Swirsky, Deputy Assistant
Secretary for Policy, U.S. Department of Labor, Room S-2312, 200
Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-
5959 (this is not a toll-free number). Copies of this final Guidance
may be obtained in alternative formats (large print, Braille, audio
tape or disc), upon request, by calling (202) 693-5959 (this is not a
toll-free number). TTY/TDD callers may dial toll-free [1-877-889-5627]
to obtain information or request materials in alternative formats.
SUPPLEMENTARY INFORMATION: The Department publishes this final Guidance
to assist in the implementation of Executive Order 13673, Fair Pay and
Safe Workplaces, dated July 31, 2014 (79 FR 45309, Aug. 5, 2014).
Executive Order 13673 was amended by Executive Order 13683, December
11, 2014 (79 FR 75041, Dec. 16, 2014) to correct a statutory citation.
The Order was further amended by Executive Order to modify the handling
of subcontractor disclosures and clarify the requirements for public
disclosure of documents.
Table of Contents
I. Background
A. GAO Studies of Federal Procurement
B. State and Local Responsible-Contracting Policies
II. Summary of the Executive Order
III. Overview of the Final Guidance
IV. Summary of Comments Received
V. Discussion of General Comments
A. Comments Requesting Changes to the Order or the Proposed FAR
Rule
B. Comments About Costs and Burdens of the Order
C. Comments About Alternatives and the Need for the Order
D. Comments About the Legal Authority for the Order
Section-By-Section Analysis
I. Purpose and Summary of the Order
II. Preaward Disclosure Requirements (Formerly ``Disclosure
Requirements'')
A. Covered Contracts (Formerly ``Who Must Make Disclosures Under
the Order'')
B. Labor Law Decisions (Formerly ``What Triggers the Disclosure
Obligations'')
1. Defining ``Administrative Merits Determination''
2. Defining ``Civil Judgment''
3. Defining ``Arbitral Award or Decision''
4. Successive Labor Law Decisions Arising From the Same
Underlying Violation
C. Information That Must Be Disclosed (Formerly ``What
Information Must Be Disclosed'')
III. Preaward Assessment and Advice (Formerly ``Weighing Violations
of the Labor Laws'')
A. Classifying Labor Law Violations
1. Serious Violations
2. Repeated Violations
3. Willful Violations
4. Pervasive Violations
B. Weighing Labor Law Violations and Mitigating Factors
(Formerly ``Assessing Violations and Considering Mitigating
Factors'')
1. Mitigating Factors That Weigh in Favor of a Satisfactory
Record of Labor Law Compliance
2. Factors That Weigh Against a Satisfactory Record of Labor Law
Compliance
C. Advice Regarding a Contractor's Record of Labor Law
Compliance
IV. Postaward Disclosure and Assessment of Labor Law Violations
V. Subcontractor Responsibility
VI. Preassessment
VII. Paycheck Transparency
A. Wage Statement Provisions
1. Rate of Pay
2. Itemizing Additions To and Deductions From Wages
3. Information To Be Included in the Wage Statement
4. Weekly Accounting of Overtime Hours Worked
5. Electronic Wage Statements
6. Substantially Similar State Laws
7. Request to Delay Effective Date
8. FLSA Exempt-Status Notification
B. Independent Contractor Notice
1. Clarifying the Information in the Notice
2. Independent Contractor Determination
3. Frequency of the Independent Contractor Notice
4. Workers Employed by Staffing Agencies
5. Translation Requirements
VIII. Effective Date and Phase-In of Requirements
IX. Other Comments
A. Public Availability of Disclosures and Assessment Information
B. Participation of Third-Parties
C. Anti-retaliation and Whistleblower Protections for Reporting
Information
I. Background
Spending on Federal contracts has almost doubled since 2000, and it
has substantially increased as a percentage of total Federal
spending.\1\ This increase has spurred new attention by Congress and
the current administration to address inefficiencies and gaps in
oversight of Federal contractors and subcontractors, including through
investment in new information-technology systems and guidance for the
Federal contracting officers who do the critical day-to-day work of
managing billions of dollars in contracts. Executive Order 13673, Fair
Pay and Safe Workplaces (the Order), is one of several of such
initiatives intended to provide new information, tools, and guidance
for contracting officers to better serve in their roles as gatekeepers
for and stewards of Federal agency resources.
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\1\ In 2000, total spending on Federal contracts was $276.9
billion; by 2012, that number had increased to $518.4 billion. See
Cong. Budget Office, ``Federal Contracts and the Contracted
Workforce,'' Letter from Director Douglas Elmendorff 1, 4 (Mar. 11,
2015), Table 1, available at https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/49931-FederalContracts.pdf.
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The Order reinforces current Federal procurement procedures.
Existing law requires Federal agencies to contract
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only with ``responsible'' sources.\2\ To implement this responsibility
requirement, an agency contracting officer must make an affirmative
determination of a contractor's responsibility before the contracting
officer makes any contract award.\3\ Under existing law, a contractor
must have ``a satisfactory record of integrity and business ethics'' to
be a responsible source.\4\ To strengthen this requirement, the Order
now instructs contracting officers to consider whether a contractor has
a history of certain labor law violations within the last three years
as a factor in determining if the contractor has such a satisfactory
record.\5\
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\2\ 10 U.S.C. 2305(b); 41 U.S.C. 3703. This requirement dates to
1884. See Act of July 5, 1884, ch. 217, 23 Stat. 107, 109. The
Federal Acquisition Regulation (FAR) contains a similar requirement.
See FAR 9.103(a). The FAR can be found at title 48 of the Code of
Federal Regulations. Citations in this Guidance to the FAR use
format FAR [section] instead of 48 CFR [section].
\3\ FAR 9.103(b). Agency ``contracting officers'' are the only
Federal officials who can enter into and sign contracts on behalf of
the Government. Id. 1.601. Contracting officers have authority to
enter into, administer, or terminate contracts and make related
determinations and findings. Id. 1.602-1(a). They also have the
responsibility to ensure that all requirements of law, Executive
orders, regulations, and all other applicable procedures, including
clearances and approvals, have been met. Id. 1.602-1(b).
\4\ 41 U.S.C. 113(4); FAR 9.104-1(d).
\5\ See Order, sections 2(a)(ii) and (iii).
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Numerous violations of applicable laws in the course of business
operations should raise questions about a contractor's integrity and
business ethics. Even the most limited definition of ``business
ethics'' requires a business to obey the law.\6\ Despite this fact,
multiple studies conducted over the last two decades suggest that
consideration of contractor labor law violations during the Federal
procurement process has been the exception rather than the rule.
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\6\ See Milton Friedman, ``The Social Responsibility of Business
is to Increase Its Profits,'' New York Times Magazine (Sept. 13,
1970); see also Rob Atkinson, ``Growing Greener Grass: Looking from
Legal Ethics to Business Ethics, and Back,'' 1 U. St. Thomas L.J.
951, 969 (2004) (``A great deal of business ethics focuses on
precisely this issue: What norms, beyond the minima of obeying the
law and making a profit, govern what business managers should
do?''). While court cases addressing the relationship between labor
violations and ``integrity and business ethics'' are not common, the
Comptroller General has, on occasion, concluded that the violation
of various labor-related laws can support a finding of lack of
integrity and business ethics. See, e.g., ALM, Inc., B-225679 et.
al, 87-1 CPD ] 493, at 1-2 (Comp. Gen. May 8, 1987) (discussing
alleged violations of the Service Contract Act (SCA) in the context
of FAR 9.104-1(d)); Gen. Painting Co., B-219449, 85-2 CPD ] 530 at 4
(Comp. Gen. Nov. 8, 1985) (discussing failure to fulfill minimum
wage requirements as a potential basis for nonresponsibility under
FAR section 9.104-1(d)); Wash. Moving & Storage Co., B-175845, 1973
WL 8012, at 2 (Comp. Gen. Mar. 9, 1973) (upholding NASA's debarment
of contractor for failure to comply with labor laws).
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A. GAO Studies of Federal Procurement
In the mid-1990s, the congressional General Accounting Office
(GAO), now known as the Government Accountability Office, issued two
reports finding that Federal contracts worth billions of dollars had
been awarded to companies that had violated the National Labor
Relations Act (NLRA) and the Occupational Safety and Health Act (the
OSH Act).\7\ The GAO observed that contracting agencies already had the
authority to consider these violations when awarding Federal contracts
under the existing regulations, but were not doing so because they
lacked adequate information about contractors' noncompliance.\8\
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\7\ See U.S. General Accounting Office, GAO/HEHS-96-8, ``Worker
Protection: Federal Contractors and Violations of Labor Law,''
Report to Senator Paul Simon (1995) (documenting awards to companies
that had violated the NLRA), available at http://www.gao.gov/assets/230/221816.pdf; U.S. General Accounting Office, GAO/HEHS-96-157,
``Occupational Safety and Health: Violations of Safety and Health
Regulations by Federal Contractors,'' Report to Congressional
Requesters (1996) (documenting awards to companies that had violated
safety-and-health regulations), available at http://www.gao.gov/assets/230/223113.pdf.
\8\ See U.S. General Accounting Office, GAO/T-HEHS-98-212,
``Federal Contractors: Historical Perspective on Noncompliance With
Labor and Worker Safety Laws,'' Statement of Cornelia Blanchette
before the Subcommittee on Oversight and Investigations, Committee
on Education and the Workforce, House of Representatives, 2 (July
14, 1998) (drawing conclusions from the 1995 and 1996 GAO reports
cited above in note 8), available at http://www.gao.gov/assets/110/107539.pdf.
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Over a decade later, with contracting expenditures escalating, the
GAO again found a similar pattern. Looking at the companies that had
the largest wage violations and workplace health-and-safety penalties
from fiscal years 2005 to 2009, the GAO found that a surprisingly high
percentage of those companies subsequently received Federal
contracts.\9\
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\9\ U.S. Government Accountability Office, GAO-10-1033,
``Federal Contracting: Assessments and Citations of Federal Labor
Law Violations by Selected Federal Contractors,'' Report to
Congressional Requesters 7-8 (2010), available at http://www.gao.gov/new.items/d101033.pdf.
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A 2013 report by the Senate Health, Education, Labor, and Pensions
(HELP) Committee corroborated these findings. That report reviewed
violations of the Fair Labor Standards Act (FLSA) and other laws
enforced by the Department's Wage and Hour Division (WHD) and
Occupational Safety and Health Administration (OSHA) between 2007 and
2012 and found that some 49 Federal contractors were responsible for
1,776 separate violations of these laws and paid $196 million in
penalties and back wage assessments.\10\ In 2012, those same companies
were awarded $81 billion in Federal contracts.\11\ Looking at the 100
largest wage and OSHA violations, the Committee found that 35 Federal
contractors had violated both wage and safety-and-health laws.\12\
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\10\ Majority Staff of Senate Committee on Health, Education,
Labor, and Pensions, ``Acting Responsibly? Federal Contractors
Frequently Put Workers' Lives and Livelihoods at Risk,'' 1 (2013)
(hereinafter HELP Committee Report), available at http://www.help.senate.gov/imo/media/doc/Labor%20Law%20Violations%20by%20Contractors%20Report.pdf.
\11\ Id.
\12\ Id. at 18.
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As the GAO had done 15 years earlier, the HELP Committee Report
noted that contracting officers had the legal authority to consider
labor law violations during the procurement process, but were not doing
so. The Committee noted that contracting officers generally do not seek
information regarding responsibility matters outside of the limited
databases they are required by law to review.\13\ And, even if they did
have access to such information, the report found, contracting officers
would be reluctant to act on it because of a lack of guidance regarding
when labor law violations add up to an unsatisfactory record of
integrity and business ethics.\14\
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\13\ Id. at 25.
\14\ Id. at 27-28.
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B. State and Local Responsible-Contracting Policies
During the decades in which the GAO and HELP Committee studies of
Federal procurement were conducted, many State and local governments
responded to similar challenges by incorporating labor standards into
contracting policies.\15\ Preaward screening for labor
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law violations became standard practice in some State and local
jurisdictions in the form of pre-qualification programs.\16\ These
programs have ``come to be viewed in the public contracting field as a
best practice and a key management strategy.'' \17\ In North Carolina,
for example, contractors must be prequalified to bid on projects for
the State's Department of Transportation. As part of this
prequalification, contractors have to disclose whether they have
received any final or nonfinal repeat or willful OSHA violations within
the past 2 years, and they must include copies of those violations with
the prequalification application.\18\
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\15\ See Paul K. Sonn & Tsedeye Gebreselassie, The Road to
Responsible Contracting: Lessons from States and Cities for Ensuring
That Federal Contracting Delivers Good Jobs and Quality Services, 31
Berkeley J. Emp. & Lab. L. 459, 464-87 (2010) (listing examples). In
addition, responsible-contractor policies have been increasingly
employed by private actors. As one safety consultant for a Fortune
500 company noted, ``[i]n the long term, carefully selected
contractors are amazingly superior to those chosen based on cost or
supposed productivity. The front-end investment for careful
selection delivers an ROI far beyond the cost to go through the
`dating-engagement-marriage' process.'' Mike Williamsen, ``Choosing
Great Contractors for Your Needs,'' Indus. Hygiene News (July/Aug.
2012), available at http://www.rimbach.com/cgi-bin/Article/IHN/Number.idc?Number=559. These sorts of long-term benefits also make
responsible-contractor policies attractive to large pension funds,
the largest of which, CALPERS, has had a responsible-contractor
policy in place for almost 20 years. See California Public
Employees' Retirement System, ``Statement of Investment Policy for
Responsible Contractor Program,'' 7, 16 (2015), available at https://www.calpers.ca.gov/docs/policy-responsible-contractor-2015.pdf.
\16\ Daniel D. McMillan, Erich R. Luschei, ``Prequalification of
Contractors by State and Local Agencies: Legal Standards and
Procedural Traps,'' Constr. Law., Spring 2007, at 21, 22 (``Public
owners in numerous states now view prequalification as a useful, if
not essential, element to ensure successful completion of
construction projects.'').
\17\ Sonn & Gebreselassie, supra note 15 at 477.
\18\ North Carolina Dep't of Transp., Subcontractor
Prequalification Form, 14 (2014), available at https://connect.ncdot.gov/business/Prequal/Documents/Subcontractor%20Prequalification%20Form.pdf. The States of
California, Massachusetts, and Connecticut have similar programs
applicable to a broad array of public works. See Sonn &
Gebreselassie, supra note 15 at 474-76. Other examples include the
Illinois Department of Transportation; the City of Los Angeles; the
Los Angeles Unified School District; the Santa Clara County, CA,
Valley Transportation Authority; and the statute authorizing the
construction of the Atlanta Beltline. Id. at 476 (discussing
policies of the Illinois Department of Transportation and the City
of Los Angeles); McMillan et al., supra note 16 at 22 (discussing
the Los Angeles Unified School District program); P'ship for Working
Families, ``Policy & Tools: Responsible Contracting,'' http://www.forworkingfamilies.org/page/policy-tools-responsible-contracting
(last visited July 11, 2016) (discussing for the Santa Clara and
Atlanta examples); see also 44 Ill. Admin. Code 650.240 (2006)
(implementing prequalification for the Illinois Department of
Transportation).
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Research tracking the results of these State and local efforts and
of other similar Federal programs has suggested that responsible-
contracting policies--including those policies that require payment of
prevailing wages--can have a positive effect on contract performance,
at limited cost and without negatively affecting competition. One
recent study analyzed State and Federal highway-construction contracts
in Colorado between 2000 and 2011 and found no statistically
significant difference in the cost of the State projects, despite the
additional prevailing-wage regulations on the federally financed
projects.\19\ The study found that the Federal regulations were ``not
associated with reduced bid competition, an important determinant of
project cost.'' \20\ Similarly, a study of local prevailing wage
regulations in California in 2012 showed that the regulations ``[did]
not decrease the number of bidders nor alter the bidding behavior of
contractors relative to the . . . value of the project.'' \21\ And a
recent study of the use of local responsible-contractor policies across
the State of Ohio showed no statistically discernible impact on school
construction bid costs.\22\
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\19\ Kevin Duncan, ``The Effect of Federal Davis-Bacon and
Disadvantaged Business Enterprise Regulations on Highway Maintenance
Costs,'' 68 ILR Review 212 (2015).
\20\ Id.
\21\ Jaewhan Kim et al., ``The Effect of Prevailing Wage
Regulations on Contractor Bid Participation and Behavior,'' 54
Indus. Relations 874 (2012).
\22\ C. Jeffrey Waddoups & David C. May, ``Do Responsible
Contractor Policies Increase Construction Bid Costs?,'' 53 Indus.
Relations, 273 (2014). Similarly, studies of local living-wage
policies have shown ``only a modest impact on costs, if any.'' See
Sonn & Gebreselassie, supra note 15 at 480. A study of Baltimore's
1994 living-wage policy, for example, found a contract cost increase
of just 1.2 percent, lower than the rate of inflation. See id.
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These studies have shown that strengthening procurement labor
standards and contractor labor-law compliance policies can play an
important role in appropriately managing competition in procurement.
When correctly managed, competition between contractors can increase
accountability and the quality of services provided.\23\ However, where
compliance with legal norms is weak, price competition alone may
instead result in an increase in unlawful behavior and poor contract
performance.\24\ State and local responsible-contracting policies have
shown that contracting agencies can improve the quality of competition
by encouraging bids from more responsible contractors that might
otherwise abstain from bidding out of concern about not being able to
compete with less scrupulous corner-cutting companies.\25\
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\23\ See Kate Manuel, Cong. Research Serv., R40516,
``Competition in Federal Contracting: An Overview of the Legal
Requirements,'' 2-3 (2011) (discussing benefits and costs associated
with competition in Federal contracting).
\24\ See, e.g., Melissa S. Baucus & Janet P. Near, ``Can Illegal
Corporate Behavior Be Predicted? An Event History Analysis,'' 34
Acad. Mgmt. J., 9, 31 (1991) (``If a firm's major competitors in an
industry are performing well, in part as a result of illegal
activities, it becomes difficult for managers to choose only legal
actions, and they may regard illegal actions as a standard industry
practice.'').
\25\ See Sonn & Gebreselassie, supra note 16 at 477, 480; see
also Maryland Dep't of Legislative Servs., ``Impact of the Maryland
Living Wage,'' 10 (2008), available at http://dlslibrary.state.md.us/publications/OPA/I/IMLW_2008.pdf (finding
that the average number of bidders for service contracts increased
from 3.7 bidders to 4.7 bidders after Maryland's living-wage law
took effect).
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In sum, studies of State and local initiatives have shown that--by
properly managing competition--responsible-contractor policies can
deliver better quality without significant cost increases for
government agencies that employ them.
The Fair Pay and Safe Workplaces Order applies lessons learned from
these developments in State and local contracting policy, and, by doing
so, addresses the longstanding deficiencies highlighted in the GAO
reports.
II. Summary of the Executive Order
Executive Order 13673 (the Order) was signed by President Barack
Obama on July 31, 2014. The Order contains three discrete parts, each
designed to help executive departments and agencies identify and work
with contractors who will comply with labor laws while performing
Federal contracts.
The first part of the Order directs agency contracting officers to
consider contractors' records of labor law violations as the agencies
make certain contracting decisions. To assure that contracting officers
have sufficient information, the Order requires contractors to disclose
their recent labor law violations to contracting officers.
Specifically, the Order requires contractors to disclose violations of
14 Federal labor laws and Executive orders and equivalent State laws
(collectively, ``Labor Laws''). The Order instructs contracting
officers to review a contractor's Labor Law violations to assess the
contractor's record of Labor Law compliance during the preaward
``responsibility'' determination and when making postaward decisions
such as whether to exercise contract options. The Order also creates a
new position--Agency Labor Compliance Advisors (ALCA)--to assist
contracting officers.
The first part of the Order also contains parallel requirements
that apply to certain subcontractors working on covered contracts. The
Order, as amended, and the final FAR rule require these covered
subcontractors to disclose their Labor Law violations to the
Department, which provides advice regarding subcontractors' records of
Labor Law compliance. Contractors then consider this advice from the
Department when determining whether their subcontractors are
responsible sources.
The second part of the Order creates new paycheck-transparency
protections for workers on Federal contracts. This part, section 5 of
the Order, contains two separate requirements. It requires contracting
agencies to ensure that certain workers on covered Federal
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contracts and subcontracts receive a wage statement that that contains
information concerning that individual's hours worked, overtime hours,
pay, and any additions made to or deductions made from pay. It also
instructs covered contractors and subcontractors to inform individuals
in writing if the individual is being treated as an independent
contractor, and not an employee.
The third part of the Order limits the use of pre-dispute
arbitration clauses in employment agreements on covered Federal
contracts.
The Order creates detailed implementation roles for the FAR
Council, the Department, the Office of Management and Budget (OMB), and
the General Services Administration (GSA). The FAR Council has the
rulemaking responsibility to amend the Federal Acquisition Regulation
(FAR) to implement the Order. Section 7 of the Order provides that the
FAR Council will ``propose such rules and regulations and issue orders
as are deemed necessary and appropriate to carry out this order.''
The Order instructs the Secretary of Labor (the Secretary) to,
among other duties, develop guidance that defines certain terms in the
Order. The Order directs the Secretary to define the categories of
Labor Law violations that contractors must disclose (administrative
merits determinations, civil judgments, and arbitral awards or
decisions); identify the State laws that are equivalent to the 14
Federal labor laws for which violations must be disclosed; define the
terms (serious, repeated, willful, and pervasive) that will be used to
assess disclosed violations; consult with ALCAs as they carry out their
responsibilities under the Order; and specify which State wage-
statement laws are substantially similar to the Order's wage-statement
requirement.
The Order also directs the Secretary to develop processes for
regular interagency meetings, develop processes by which contracting
officers and ALCAs may give appropriate consideration to determinations
and agreements made by the Department and other enforcement agencies,
develop processes by which contractors may enter into agreements with
the Department or other enforcement agencies, and review and improve
the Department's data collection systems.
The final Guidance document that follows this SUPPLEMENTARY
INFORMATION contains a more detailed summary of the Order.
III. Overview of the Final Guidance
Consistent with its obligations under the Order, the Department
issued its Proposed Guidance on May 28, 2015, on the same date that the
FAR Council issued its proposed rule to implement the Order. See 80 FR
30548 (proposed FAR rule); 80 FR 30574 (Proposed Guidance). Both the
Department and the FAR Council solicited public comment, and the
initial written comment periods closed on July 27, 2015. In response to
requests for additional time to comment, however, the Department and
the FAR Council extended the comment periods through August 26, 2015.
After reviewing and carefully considering all of the timely submitted
comments, the FAR Council and the Department are now simultaneously
publishing final versions of the rule and the Guidance.
The Proposed Guidance contained sections addressing the purpose and
summary of the Order, including a discussion of the existing FAR
framework and the legal authority for the Order; the disclosure
requirements; weighing Labor Law violations; the paycheck transparency
provisions; an invitation to comment; and next steps. The Department
solicited written comments on all aspects of the Proposed Guidance and
also invited public comment on a variety of specific issues.
In the final Guidance, the Department has made several significant
adjustments to accurately describe the modifications that the FAR
Council made to its rule. In addition, in response to the comments
about topics specifically tasked to the Department, the Department has
clarified various definitions of terms used in the Order and included a
more detailed narrative of the process for disclosing, categorizing,
and weighing labor law violations.
The final Guidance, which follows this SUPPLEMENTARY INFORMATION,
has the same basic structure as the Proposed Guidance with some
additional sections added for clarity. It contains the following
sections: (I) Purpose and summary of the Order, (II) Preaward
disclosure requirements, (III) Preaward assessment and advice, (IV)
Postaward disclosure and assessment, (V) Subcontractor responsibility,
(VI) Preassessment, (VII) Paycheck transparency, and (VIII) Effective
date and phase-in of requirements.
This Guidance satisfies most of the Department's responsibilities
for issuing guidance, and the Department will publish at a later date a
second guidance that satisfies its remaining responsibilities. The
second guidance will be, as this Guidance was, submitted for notice and
comment, published in the Federal Register, and accompanied by a
proposed amendment to the FAR rule. The Department will likewise submit
for notice and comment and publish any future updates to the Guidance
that will have a significant effect beyond the operating procedures of
the Department or that will have a significant cost or administrative
impact on contractors or offerors. The Department will coordinate with
the FAR Council in determining whether updates will have a significant
cost or administrative impact.
IV. Summary of Comments Received
The Department received 7,924 comments on the Proposed Guidance
from a wide variety of sources. Among these comments, some 7,784 were
in the nature of mass mailings expressing general support for the
Order, the FAR Council's proposed rule, and the Department's Proposed
Guidance (collectively ``the Order and the proposals''). Another 30
comments were in the nature of form letters, most of which expressed
general opposition to the Order and the proposals. The Department also
received an additional 109 individual submissions.
As discussed above, the FAR Council is issuing the implementing
regulations for the Order by amending the FAR. The FAR Council
published its proposed rule on the same date as the Department
published its Proposed Guidance and similarly extended the comment
period on the proposed rule to August 26, 2015. The Department and the
FAR Council have coordinated efforts to assure the comments submitted
that are relevant to the Guidance or to the FAR rule are shared with
the appropriate agency, regardless of which agency may have initially
received any specific comment.
A wide variety of interested parties submitted comments on the
Proposed Guidance. Commenters included Members of Congress; State
executive agencies; individual Federal contractor entities; national
and State-level employer associations and advocacy organizations;
professional associations; labor union federations; worker advocacy
organizations; civil rights and human rights advocacy organizations;
other non-profit advocacy organizations; and the Small Business
Administration's Office of Advocacy, among others.
The Department recognizes and appreciates the value of comments,
ideas, and suggestions from all those who commented on the proposal,
and the final Guidance was developed only
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after consideration of all the material submitted.
V. Discussion of General Comments
This section of the preamble to the final Guidance discusses the
general comments that the Department received.
A. Comments Requesting Changes to the Order or the Proposed FAR Rule
Several industry commenters took issue with the text of the Order
itself. In promulgating the Guidance and rule, the Department and the
FAR Council are guided by the plain language of the Order. For example,
several commenters argued that the FAR Council and the Department
should change the contract value that will trigger the Order's
disclosure requirements. Yet this $500,000 threshold comes from section
2 of the Order itself. Comments such as these are generally not
addressed here.
Similarly, several commenters from both industry and worker-
advocacy organizations took issue with requirements specific to the FAR
Council's proposed rule, and not to the Guidance. The government's
response to these comments will appear in the FAR Council's final rule.
They are generally not addressed here.
B. Comments About Costs and Burdens of the Order
A number of employers and employer associations expressed concern
that the requirements and processes established by the Order and the
proposals will impose a heavy compliance burden that will increase
their costs and cause delays in Federal contracting. Several of these
industry commenters suggested that these potential costs and delays
would harm the government and the public by increasing bid prices,
discouraging companies from bidding on Federal contracts, or delaying
the acquisition of key government goods and services.
Other commenters expressed general support for the Order and the
proposals. Several argued that the disclosure requirements do not go
far enough. These commenters suggested that contractors should be
required to provide more information about each Labor Law violation
than proposed by the Department, and argued that all of the information
disclosed to contracting agencies should be compiled in a public,
searchable database.
The Department recognizes that compliance with the Order's and the
proposals' new requirements and processes will involve costs to
contractors associated with the required representation and
disclosures. These costs and burdens are addressed in the Regulatory
Impact Analysis (RIA) that accompanies the final FAR rule. Accordingly,
the Department does not specifically list and respond to each comment
about costs and burdens in this final Guidance document. Likewise,
comments asserting that the RIA in the proposed FAR rule was flawed are
addressed by the FAR Council and therefore are not summarized or
answered here.
C. Comments About Alternatives and the Need for the Order
Various industry commenters suggested that the Order and its
requirements are unnecessary because any problems associated with Labor
Law violations by Federal contractors can be addressed through existing
rules and processes. Several commenters suggested that problems
associated with Labor Law violations should be addressed in the
existing suspension-and-debarment process instead of through the
preaward responsibility process. Others suggested that the Order's
disclosure requirements, specifically, are unnecessary because the
government already obtains information about violations under the laws
covered by the Order. These commenters argued that enforcement agencies
already have the necessary information and that the disclosure
requirements are duplicative of other reporting and information-
gathering projects already in existence.
While these commenters have raised important issues, the Department
does not believe that the Order is unnecessary or duplicative of
existing processes. As an initial matter, the Department emphasizes
that the purpose of the Order is to increase efficiency in contracting
by encouraging compliance during contract performance, not to increase
the use of suspension and debarment. The Order's new requirements and
processes are designed to identify and help contractors address Labor
Law violations and come into compliance before a contracting agency
turns to the suspension-and-debarment process. The Order does not in
any way alter the suspension-and-debarment process; however, the
expectation is that its new requirements and processes will help
contractors avoid the consequences of that process.
The Department believes that focusing on the preaward process--in
addition to a functional suspension-and-debarment regime--is efficient
for the government as well as for those contractors that are given the
opportunity to avoid suspension or debarment. Without effective
preaward screening, the government faces the difficult decision about
whether to expend resources on suspending or debarring a company that
may in fact not be planning to subsequently bid on a government
contract.\26\ And, as the chief construction inspector for the Los
Angeles Bureau of Contract Administration has explained, front-end
responsibility screening ``is more effective and more beneficial to the
public than a reactionary system. When you get a bad contractor on the
back end, they've already done the damage, and then it's a costly
process of kicking them out.'' \27\
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\26\ See Yuri Weigel, ``Is `Protection' Always in the Best
Interests of the Government?: An Argument to Narrow the Scope of
Suspension and Debarment,'' 81 Geo. Wash. L. Rev. 627, 660-61 (2013)
(arguing that suspension and debarment are not always worth the
administrative costs); HELP Committee Report, supra note 11 at 28-29
(discussing the inefficacies of the suspension and debarment
process).
\27\ Sonn & Gebreselassie, supra note 16, at 476-77.
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Moreover, when one Federal agency suspends or debars a contractor,
that action applies across the entire Federal Government. The
collateral consequences--both for a debarred contractor and for other
contracting agencies that may need the services of that contractor--can
be severe.\28\ Thus, while the suspension-and-debarment process plays
an important role in addressing significant concerns regarding an
entity's responsibility and has a broad-reaching impact,\29\ the
preaward framework employed by the Order is an equally important tool,
one that allows responsibility concerns to be addressed on a
procurement-by-procurement basis with attendant benefits to both the
government and the contracting community.
---------------------------------------------------------------------------
\28\ See Robert Stumberg et al., ``Turning a Blind Eye:
Respecting Human Rights in Government Purchasing,'' Int'l Corp.
Accountability Roundtable, 39-40 (2014) available at http://icar.ngo/wp-content/uploads/2014/09/Procurement-Report-FINAL.pdf;
see also John B. Warnock, ``Principled or Practical Responsibility:
Sixty Years of Discussion,'' 41 Pub. Cont. L.J. 881, 914 (2012)
(``Government-wide debarment is punitive debarment to the extent
that it disregards agencies' individual requirements and abilities
to mitigate procurement risks.'').
\29\ In some cases, denying access to Federal contracts may in
fact ``be the only realistic means of deterring contractors from
[labor violations] based on a cold weighing of the costs and
benefits of non-compliance.'' Janik Paving & Constr., Inc. v. Brock,
828 F.2d 84, 91 (2d Cir. 1987) (holding that the Department had
authority to debar a contractor over violations of the Contract Work
Hours and Safety Standards Act).
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Recognition of the benefits of early detection and prevention
underlies the existing Federal procurement rules that require
disclosure and consideration of various non-labor violations at the
preaward stage. A bidder must disclose
[[Page 58659]]
information such as tax delinquencies in excess of $3,500 and certain
criminal convictions, indictments, civil judgments, and charges (for
example, for violations of Federal or State antitrust statutes related
to the submission of offers, commission of embezzlement, and making
false statements); and a bidder with Federal contracts and grants
totaling in excess of $10 million must additionally disclose
information such as civil and administrative findings of fault and
liability in connection with the award to or performance by the bidder
of a Federal contract or grant.\30\
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\30\ See FAR 52.209-5, 52.209-7.
---------------------------------------------------------------------------
By mandating preaward consideration of Labor Law violations, the
Order does no more than treat such violations the same as these other
existing responsibility red flags. By doing so, the Order will
facilitate timely communication, coordination, and cooperation among
Government officials--including contracting officers, suspending and
debarring officials, and others--regarding responses to Labor Law
violations to the fullest extent appropriate to the matter and
permissible by law. By working together in this way, Federal Government
agencies can better protect the government's interests in efficient
contract administration and high-quality contract performance.
The Department also disagrees with the commenters that suggested
the Order's disclosure requirements, specifically, are unnecessary and
therefore unnecessarily burdensome. The Order's disclosure requirements
are carefully tailored: It requires only a limited yes-or-no
representation by all bidders and reserves the more detailed disclosure
only for bidders for whom the contracting officer is making a
responsibility determination--which most often is only the apparent
awardee of the contract. The disclosure requirement is thus designed to
request information from only those contractors for whom it is
necessary in order for the contracting officer to assure that he or she
is contracting with a responsible source, as required under existing
law.
While some commenters stated that this disclosure requirement was
unnecessarily burdensome, others found the Order's disclosure
requirement to be appropriate. The National Employment Law Project, for
example, argued that the contractor is ``best positioned to furnish
complete and accurate records about its labor violation.'' The
Department finds this argument to be persuasive. The Order requires
disclosure of various categories of information that the Federal
Government does not have in its possession, including information about
State law violations, private litigation, and arbitration. Contractors
are the best source of this information.
In addition, the Order balances the disclosure requirement with a
parallel instruction for the Department to review its own data
collection requirements and processes, and to work with the Director of
the Office of Management and Budget, the Administrator for the General
Services Administration, and other agency heads to improve those
processes and existing data collection systems, as necessary, to reduce
the burden on contractors and increase the amount of information
available to agencies. See Order, section 4(a)(iii). As noted in the
Initial Regulatory Flexibility Analysis that was part of the proposed
FAR rule, this review and the related improvement to Federal databases
has been initiated, and the Department is confident that it will
ultimately be successful in further reducing the disclosure burden
associated with the Order's disclosure requirements. See 80 FR 30562.
Until that time, however, the system of disclosure created under the
Order is the most efficient and least burdensome method of making
information about labor violations available to contracting officers.
See id.
D. Comments About the Legal Authority for the Order
The Department received a number of comments challenging the legal
authority upon which the Order and the proposals were issued. The
commenters alleged that several provisions of the Proposed Guidance
were contrary to Federal law and constitutional principles. The
Department briefly summarizes those arguments and provides the
following response:
1. The Procurement Act
Several industry commenters questioned the President's use of the
Federal Property and Administrative Services Act (the Procurement Act),
40 U.S.C. 101 et seq., as the legal authority for the Order. They
argued that the Order and the proposals do not have the nexus to
``economy and efficiency'' in government procurement that courts have
required for Executive action taken under the Procurement Act. The
commenters argued that, instead, the Order will lead to higher
procurement costs and a more burdensome procurement system. Commenters
also questioned whether there is a relationship at all between labor
law violations and poor contract performance.
After carefully reviewing these comments and the relevant case law,
the Department disagrees with the commenters. The Order, the FAR rule,
and this Guidance do not exceed the President's authority under the
Procurement Act. The Procurement Act grants the President broad
authority to prescribe policies and directives that the President
considers necessary to carry out the statutory purposes of ensuring
economical and efficient government procurement. The requisite nexus
exists where the President's explanation for how an Executive order
promotes efficiency and economy is reasonable and rational. As the
Department discussed in the Proposed Guidance, the overall objective of
the Order is to increase the government's ability to contract with
companies that will comply with labor laws, thereby increasing the
likelihood of timely, predictable, and satisfactory delivery of goods
and services. The Department believes that agencies will benefit from
additional information--through the new disclosure requirements--to
better determine if a potential contractor is a responsible source.
The Order and the FAR rule provide ample basis for concluding that
the goals of economy and efficiency in procurement are served. The RIA
cites various studies showing a correlation between labor law
violations and poor quality construction, low performance ratings,
wasteful practices, and other performance problems.\31\ And, by looking
at contractors' recent violations of the law, Federal agencies can
reasonably predict future behavior. As one academic study found, the
existence of three or more prior violations of the law by a corporation
is a ``highly significant'' predictor of subsequent illegal
activity.\32\ The President's explanation for how the Order promotes
economy and efficiency is reasonable and rational. The final FAR rule
and Department Guidance are therefore appropriate under the Procurement
Act.
---------------------------------------------------------------------------
\31\ The Department notes that both a correlation and a causal
relationship exist between labor law violations and contract
performance. In predicting and explaining unlawful corporate
behavior, many academic researchers have emphasized the problem,
above all, of ``top management in tolerating, even shaping, a
corporate culture that allows for deviance.'' William S. Laufer,
``Corporate Liability, Risk Shifting, and the Paradox of
Compliance,'' 52 Vand. L. Rev. 1343, 1410-11 (1999) (citing various
studies). Thus, in many cases, labor law violations and other
harmful practices (such as contract fraud)--both of which cause poor
contract performance--may all be symptoms of the underlying
management failures or malfeasance.
\32\ Baucus & Near, supra note 25 at 27.
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[[Page 58660]]
2. Separation of Powers
Several commenters argued that the Order and the proposals impinge
on separation-of-powers principles. These arguments were presented in
two ways: (1) The Order is preempted by the Labor Laws, and (2) the
Order improperly amends Federal laws by creating new categories of
violations and imposing new penalties. Several commenters focused
specifically on the NLRA, citing court decisions in Wis. Dep't. of
Indus. v. Gould, Inc., 475 U.S. 282 (1986), and Chamber of Commerce v.
Reich, 74 F.3d 1322 (D.C. Cir. 1996).\33\
---------------------------------------------------------------------------
\33\ Various commenters also made a separation-of-powers type of
argument about the Federal Arbitration Act (FAA) and the Order's
limits on certain pre-dispute mandatory arbitration clauses. The
Department is not providing guidance regarding that section of the
Order and therefore does not address the legal arguments about the
FAA. The FAR Council addresses FAA-related legal arguments in the
preamble to its final rule.
---------------------------------------------------------------------------
After careful review of the comments and the law, the Department
concludes that the Order does not offend separation-of-powers
principles. The Department disagrees with the commenters who suggested
that traditional preemption principles apply to Federal Executive
actions. Rather, the appropriate question is whether the Executive
action under the Procurement Act conflicts with some more specific
statute Congress has enacted. An Executive action may not prohibit
activity that Congress has explicitly declared permissible, or vice
versa. Here, however, the Order and proposals do neither.
The Department also disagrees with the characterization of the
Order as creating new categories of violations or a new penalty--the
possibility of being found nonresponsible and denied government
contract work. The Order does not materially alter the current
procurement process. As discussed above in the background section,
contracting officers already may consider Labor Law violations when
assessing a contractor's responsibility. Other than requiring
disclosure of Labor Law violations, the Order does no more regarding
the responsibility determination process than provide additional
assistance to contracting officers to assist them in carrying out their
existing duties.
The purpose of the existing FAR responsibility determination is to
evaluate conduct that may be remediable or punishable under other
statutes. Contractors are already required to report numerous types of
conduct, including fraud, anti-competitive conduct, embezzlement,
theft, forgery, bribery, falsification or destruction of records,
making false statements, tax evasion, receiving stolen property, and
tax delinquencies, that are unlawful and separately punishable under
existing Federal and State laws. See FAR 52.209-5(a)(1)(i)(B)-(D). Such
reporting and consideration does not create a new penalty under those
statutes because the purpose of these FAR provisions is not to penalize
a contractor, but rather to assure that the government contracts with
responsible parties as it carries out its proprietary business. For the
same reason, the Order's express consideration of the Labor Laws does
not create new categories of violations or new penalties.
Finally, the Department disagrees that this analysis applies
differently to the NLRA than to the other Labor Laws covered under the
Order. Courts have upheld various Executive orders absent a direct
conflict with the NLRA's statutory provisions. The decisions in Gould
and Reich relied upon by the commenters do not suggest otherwise. Those
two decisions involved initiatives that directly targeted only NLRA-
covered violations. Moreover, the Gould decision did not involve a
Federal Executive order, but rather a State law, and one that the Court
found to have ``the manifest purpose'' of enforcing the requirements of
the NLRA and which could not even ``plausibly be defended as a
legitimate response'' to local procurement needs. 475 U.S. at 291. The
Reich decision did involve an Executive order, but one which the court
found to have the intent and effect of depriving contractors of the
ability to hire permanent replacements during a strike--something that
``promise[d] a direct conflict'' with the NLRA. 74 F.3d at 1338. In
both cases, the courts found that the provisions at issue were intended
to affect the relationship between management and organized labor as
opposed to seeking to advance a narrow proprietary interest with a
close nexus to achieving economy and efficiency in Federal procurement.
In contrast, here the Order endeavors only to treat the NLRA no
differently than any of the other 13 covered Labor Laws. Thus, unlike
in Gould and Reich, the inclusion of the NLRA in the Order here
demonstrates the Order's intent to promote the government's proprietary
interest in efficient contracting in an evenhanded manner.
3. Due Process
Many industry commenters expressed concern that that the Order and
the proposals do not provide contractors with constitutionally
sufficient due process protections. For example, two employer
representatives argued that the Order and the proposals could infringe
upon protected liberty interests because an adverse responsibility
determination could harm a prospective contractor's reputation. Others
argued that a contractor's protected property interests may be
infringed where postaward violations lead to an adverse action such as
the non-renewal of an option, contract termination, or debarment.
The Department agrees that the preaward responsibility
determination, the exercise of postaward contract remedies, and the
suspension-and-debarment process each require consideration of a
contractor's right to due process. However, the Department emphasizes
that neither the Order nor the Guidance diminish the existing
procedural safeguards already afforded to prospective contractors
during the preaward responsibility determination or to contractors
after they have been awarded a contract. Moreover, the Order does not
infringe upon liberty or property interests because contractors receive
notice that the responsibility determination is being made and are
offered a pre-decisional opportunity to be heard by submission of any
relevant information--including mitigating circumstances related to any
Labor Law violation that must be disclosed.\34\ Finally, nothing in the
Order diminishes contractors' post-decisional opportunity to be heard
through existing administrative processes and the Federal courts.
---------------------------------------------------------------------------
\34\ See FAR 22.2004-2(b)(1)(ii). Several commenters argued that
the definition of administrative merits determination will be costly
because it will force contractors to litigate a Labor Law violation
in two separate fora--first, in front of the enforcement agency that
has made the determination; and, second, by submitting mitigating
circumstances to a contracting officer when submitting a bid. While
mindful of the additional costs that this process may entail for
some contractors, the Department submits that contractors'
opportunity to provide relevant information (including mitigating
circumstances) during the responsibility determination addresses the
due process concerns raised by the employer associations.
---------------------------------------------------------------------------
Various commenters also challenged the Proposed Guidance's
definition of administrative merits determinations, claiming that
requiring contractors to report nonfinal and appealable allegations
denies them due process. Commenters asserted that a contractor may feel
pressured to negotiate or sign a labor compliance agreement and forgo a
challenge to a nonfinal administrative merits determination in order to
receive a pending contract.
The Department has carefully considered this argument, but does not
believe that the specific requirement to
[[Page 58661]]
disclose nonfinal administrative merits determinations violates
contractors' rights to due process. Though the Order and FAR rule (and
therefore the Guidance) place value on a contractor's effort to
remediate violations through a settlement or labor compliance
agreement, neither contains any requirement that a contractor must
settle all open cases in order to be found responsible and receive a
contract award--a fact that the Department has emphasized in the final
Guidance. See Guidance, section III(B)(1)(a). Similarly, the final
Guidance also emphasizes that a contractor may enter into a labor
compliance agreement while at the same time continuing to contest an
underlying Labor Law violation. See id. section III(C)(1). Because a
contractor is not required to forgo the right to appeal any nonfinal
Labor Law violation in order to secure a Federal contract, the
requirement to disclose nonfinal violations clearly does not violate
due process.
4. The Administrative Procedure Act
Some commenters argued that the Guidance does not comply with the
Administrative Procedure Act (APA), 5 U.S.C. 553(b). They asserted that
the Guidance is, in effect, a legislative rule that requires notice and
comment. The Department has reviewed these comments and finds them to
be without merit. The Guidance is not a legislative rule; it does not
bind private parties or agency officials, and it does not meet the
four-part test for a legislative rule that would require notice and
comment. See Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d
1106, 1109 (D.C. Cir. 1993).
First and foremost, the Order provides an independent and adequate
basis for enforcement, apart from the Guidance. See Am. Mining, 995
F.2d at 1112. The Order and the FAR Council rule provide disclosure and
process requirements that bind private parties and agency officials.
The Guidance only supplies additional clarity to these requirements
through the Department's interpretation of certain terms of the Order
and narrative description of the process. Second, the Department has
not explicitly invoked its general legislative authority. See id.
Rather, it has acted to create a guidance document at the explicit
instruction of the Order itself. See Guidance, section I(B). Third, the
Guidance does not effectively amend the Order or any regulations;
rather, it is consistent with their requirements. An agency action
``does not, in this inquiry, become an amendment merely because it
supplies crisper and more detailed lines than the authority being
interpreted.'' Am. Mining, 995 F.2d at 1112. Finally, the Guidance will
not be published in the Code of Federal Regulations. See id.
Moreover, even if the Guidance were considered to be a legislative
rule, the Department met the APA's procedural requirements by
publishing the Proposed Guidance in the Federal Register and soliciting
and considering comments before issuing the final Guidance.
In another set of comments directed at procedural aspects of the
Guidance, a few employer groups raised concerns that the impact of the
Guidance could not be properly assessed because the Department decided
to identify only a small number of the State laws equivalent to the 14
Federal laws listed in the Order and to leave the remaining State laws
for a subsequent guidance document. One commenter also stated that the
Proposed Guidance did not contain a sufficient justification for this
two-step process, suggesting that the final Guidance cannot be upheld
unless the Department provides appropriate reasons for delaying the
identification of equivalent laws. The Department has reviewed these
comments and finds that they are premature and without merit. The
Department has identified in this Guidance that OSHA State Plans are
equivalent State laws; but the Department has decided to delay the
identification of additional equivalent State laws as part of the
phase-in of the Order's requirements that will allow contractors and
contracting agencies time to adjust to the new requirements. The
comments also do not account for the fact that the additional guidance
released in the future will also be submitted as a proposal with an
opportunity for comment and accompanied by a proposed amendment to the
FAR and a Regulatory Impact Analysis.
Finally, one employer advocacy group commented that the Order
directs the Department to issue guidance regarding only a single
portion of the paycheck transparency provision, which is the
identification of substantially similar State wage-statement laws. This
commenter, Equal Employment Advisory Council (EEAC), requested
clarification regarding what authority the Department has for issuing
the ``guidance, binding or not, on the additional provisions of the
paycheck transparency provision.'' The commenter misunderstands the
reason that the Department addressed all aspects of the paycheck-
transparency requirements in the Proposed Guidance. The Department
intends the Guidance to be a stand-alone document that will be helpful
to agency officials and contractors as they implement the requirements
in the Order and the FAR rule. Accordingly, the Department has included
in the final Guidance a description of the requirements of the Order
and the FAR--regardless of whether the Order specifically required the
Department to provide guidance on those specific provisions.
Section-by-Section Analysis
In addition to submitting general comments, commenters also
commented on specific elements of the Proposed Guidance. The Department
appreciates the effort from these commenters to carefully review the
Order and the Proposed Guidance. The Department now modifies the final
Guidance in response to those comments in a number of areas. The
comments, responses, and modifications are summarized below in a
section-by-section analysis.
I. Purpose and Summary of the Order
Section I of the Guidance is an introduction that explains the
purpose of Executive Order 13673, briefly summarizes the legal
authority for the Order and the existing FAR rules to which the Order
applies, and recites a summary of the new requirements and processes
contained in the Order. The subsection on legal authority specifically
identifies the Procurement Act, 40 U.S.C. 101 et seq., as providing the
statutory authority for the Order.
The Department received a number of comments questioning whether
the Order would achieve its stated purpose of increasing economy and
efficiency in Federal procurement, and--as a related matter--whether
the President was justified in issuing the Order under the Procurement
Act. As discussed above, the Department disagrees with those commenters
that have questioned the purpose of and authority for the Order. The
Department therefore concludes that it is not necessary to amend this
section in response to these comments. The Department does, however,
amend section I of the final Guidance to include the discussion of the
purpose of the Order previously included in another section of the
Proposed Guidance, to conform the summary to changes made to the FAR
rule, to add language reiterating that the Guidance is not a
legislative rule, and to improve its clarity.
II. Preaward Disclosure Requirements (Formerly ``Disclosure
Requirements'')
During both the preaward and postaward periods, the Order requires
contractors and subcontractors
[[Page 58662]]
(collectively, ``contractors'') to disclose administrative merits
determinations, civil judgments, and arbitral awards or decisions
rendered for violations of the Labor Laws (collectively, ``Labor Law
decisions'').\35\ Section II of the Guidance assists agencies in
interpreting the preaward disclosure requirements in the Order and the
FAR rule.\36\ Because the FAR rule governs the requirements discussed
below, the Department has modified the Guidance to parallel changes
made in the final FAR rule and has included additional descriptions of
the rule's requirements to assist contractors and contracting agencies.
---------------------------------------------------------------------------
\35\ The Department has made several nonsubstantive changes to
the Guidance in the disclosure section for clarity. The final
Guidance now uses ``contractors'' to refer to both prime contractors
and subcontractors; where relevant, however, the distinction between
prime contractors and subcontractors is noted. In addition, the
Guidance now refers to a contractor's requirement to provide
information as ``disclosure'' instead of ``reporting.'' This change
is intended only for consistency with the language of the FAR rule.
\36\ The Department has summarized the FAR's rules on postaward
disclosures and assessment in section IV of the Guidance. The
comments regarding the postaward process are discussed in a parallel
section below.
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A. Covered Contracts (Formerly ``Who Must Make Disclosures Under the
Order'')
The first part of section II of the Guidance discusses the types of
contracts covered by the Order and the scope of a contractor's
requirement to disclose Laboe Law decisions. These types include
contracts between Federal agencies and prime contractors that meet
certain conditions (covered procurement contracts). And they include
subcontracts that meet similar, but not identical, conditions (covered
subcontracts). The Guidance uses the term ``covered contract'' to refer
to both covered procurement contracts and covered subcontracts.
The Department received several comments requesting that the
definition of the various types of covered contracts be amended. One
industry commenter, the Aerospace Industries Association (AIA),
suggested that all commercial item contracts--and especially commercial
item subcontracts--should be excluded from the Order's disclosure
requirements. AIA noted that the Order does expressly exclude
subcontracts for commercially available off-the-shelf items (COTS), and
it asserted that there is no basis for distinguishing between contracts
for COTS items and contracts for commercial items. It noted that there
is a ``major government initiative'' to increase government acquisition
of commercial items.
The Department declines to amend the Guidance as suggested. The
definition of covered contracts is within the jurisdiction of the FAR
Council. As the FAR Council indicates in the preamble to its final
rule, the plain language of the Order does not provide for a blanket
exclusion of commercial item contracts, which are distinct from COTS
contracts in the FAR. The Order expressly excludes contracts for COTS
items from covered subcontracts, see Order, section 2(a)(iv), and does
not specifically address commercial items. Had the Order intended to
also exclude contracts for commercial items, it would have done so
expressly. The Guidance thus adopts the proposed definitions of
``covered procurement contracts,'' ``covered subcontracts,'' and
``covered contracts;'' and the Department has added additional language
to highlight the applicability of the Order to procurement contracts
for both COTS and commercial items.
The Department also received multiple comments about the definition
of a ``contractor'' in this section. The Proposed Guidance explained
that references to ``contractors'' include both individuals and
entities and both offerors on and holders of contracts. Several
employer organizations asked the Department to clarify whether this
definition of ``contractor'' requires parties bidding on or holding
covered contracts to disclose the violations of their parent
corporations, subsidiaries, or affiliates. One commenter, the U.S.
Chamber of Commerce, suggested that the Guidance the term contractor be
limited to mean ``the entity that legally executes a contract with the
Government'' and should not include ``affiliated legal entities.''
Another commenter, the Society for Human Resource Management et al.,
recommended that disclosure be at the Commercial and Government Entity
(CAGE) Code level because it would be less burdensome and because any
alternative would not be reasonably related to the responsibility of
the ``specific entity that will perform the federal contract.'' Other
industry commenters requested clarity on which entity is obligated to
report the violations of affiliated entities after acquisitions,
spinoffs, and mergers occur and any violations that occurred at
facilities no longer in use.
In contrast, union and worker-advocacy organizations suggested that
the Guidance define ``contractor'' to expressly include a contractor's
affiliates and/or recommended that the Guidance otherwise require
contractors to report the Labor Law violations of their affiliates.
Some recommended that the Guidance use the FAR definition of
``affiliates'' at FAR 2.101, which defines ``affiliates'' in the
context of direct or indirect control of an entity or business.
The Department declines to amend the definition of ``contractor''
in the final Guidance. The applicability of the Order's disclosure
requirements to a contracting entity's corporate affiliates is within
the jurisdiction of the FAR Council. As the FAR Council indicates in
the preamble to its final rule, the scope of prime contractor and
subcontractor representations and disclosures follows the general
principles and practice of the FAR that are the same for other FAR
provisions requiring representations and disclosures. The requirement
to represent and disclose applies to the legal entity whose name and
address is entered on the bid/offer and that will be legally
responsible for performance of the contract. Consistent with current
FAR practice, representations and disclosures do not apply to a parent
corporation, subsidiary corporation, or other affiliates, unless a
specific FAR provision (e.g., FAR 52.209-5) requires that additional
information. The Department additionally notes that the Order's
disclosure requirements do not amend the existing FAR provisions
regarding the relationship between a contractor's affiliates and its
responsibility. The FAR continues to require contracting officers to
consider all relevant information when reviewing a contractor's
responsibility--including the past performance and integrity of a
contractor's affiliates when they affect the prospective contractor's
responsibility. See FAR 9.104-3(c).
The Department also received comments specifically directed at
``covered subcontracts.'' In the final Guidance, the Department created
a new section dedicated specifically to subcontractor responsibility.
See Guidance, section V. The comments about subcontract coverage are
addressed in a parallel section of the section-by-section analysis
below.
B. Labor Law Decisions (Formerly ``What Triggers the Disclosure
Obligations'')
The second part of section II discusses the categories of Labor Law
decisions that contractors must disclose. The Order requires
contractors to disclose Labor Law decisions rendered against them
within the preceding 3-year period for a violation of the Labor Laws.
See Order, sections 2(a)(i), 2(a)(iv)(A). The Proposed Guidance
interpreted the relevant 3-year period to be the 3-year period
preceding the date of the offer, contract bid, or proposal. 80 FR
30574, 30578. Labor Law decisions rendered
[[Page 58663]]
during that 3-year period must be disclosed even if the underlying
unlawful conduct occurred more than 3 years prior to the date of the
report. See id. The Proposed Guidance further explained that
contractors must disclose Labor Law decisions that were issued during
the relevant 3-year period even if they were not performing or bidding
on a covered contract at the time of the decision. Id. at 30578-79.
Timing of the Initial Representation Requirement
The FAR Council proposed rule provided that, consistent with the
Order, all ``offerors'' must initially represent at the time of their
bids whether they have decisions that must be disclosed. See 80 FR
30552. One industry commenter proposed that only the contractor
selected for an award of the contract should have to make the initial
representation required by the Order. The FAR rule reasonably creates a
two-step process requiring an initial representation equivalent to
``yes or no.'' See FAR 22.2004-1(a). And only contractors for whom a
contracting officer will initiate a responsibility determination must
make more detailed disclosures. Id. This staggered process provides an
appropriate balance by requiring detailed disclosures only from
offerors for whom the contracting officer is conducting a
responsibility determination.
The 3-Year Disclosure Period
Several commenters addressed the 3-year disclosure period. For
example, the Aerospace Industries Association (AIA) argued that, at
least with respect to administrative merits determinations, ``only
those determinations based on conduct that occurred or ceased within
the prior three years'' should be disclosed. However, the Order states
that contractors must disclose violations ``rendered against'' the
contractor within the 3-year disclosure period. Order, sections
2(a)(i), 2(a)(iv)(A). This language clearly refers to the date of the
Labor Law decision, as opposed to when the underlying conduct occurred.
The final Guidance includes an additional example to illustrate this
principle.
The Council of Defense and Space Industry Associations (CODSIA)
requested that the period of coverage for the disclosure requirements
be reduced to 6 or 12 months. The plain language of the Order provides
for a 3-year disclosure period, see Order, section 2(a)(i); thus it is
not possible to permanently reduce the disclosure period. However, as
described in section VIII of the Guidance and the corresponding section
of the section-by-section analysis below, the final FAR rule phases in
the disclosure period so that the full 3-year period will not be fully
effective until October 25, 2018.
Proposal To Add Labor Laws
Some commenters suggested requiring disclosures for violations of
statutes other than the enumerated Labor Laws. For example, the United
Food and Commercial Workers International Union (UFCW) proposed adding
``the anti-discrimination provisions of the Immigration and Nationality
Act as amended by the Immigration Reform and Control Act of 1986 which
are codified at [8 U.S.C. 1324b].'' Two labor union commenters urged
the Department to require disclosure of safety-and-health violations
under statutory authority separate from the OSH Act, such as the Atomic
Energy Act, 42 U.S.C. 2282c.\37\
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\37\ Although the Order does not require the disclosure of
violations of other Federal occupational safety-and-health statutes,
such violations may be otherwise considered during the contracting
process. For example, a contractor may bid on a Department of Energy
contract for which the work will be covered by the Atomic Energy Act
rather than the OSH Act. Such a contractor, however, may be
performing work, or has performed work, that is covered by the OSH
Act for another government agency or in the private sector. It is
clear from the plain terms of the Order that a contractor, when
bidding on a contract, must disclose any violations of the OSH Act,
even if the work for which the contractor is bidding will not be
covered by the OSH Act.
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The Department declines to adopt these proposals. The Order
specifically identifies 14 Federal laws and Executive orders for which
violations must be disclosed. Order, section 2(a)(i)(A)-(N). The
Department cannot alter the list of laws covered by the Order.
Disclosure of Criminal Violations
The Center for American Progress Action Fund (CAPAF) requested
clarification as to whether the Order requires disclosure of criminal
violations of the Labor Laws, as the FLSA, the Migrant and Seasonal
Agricultural Worker Protection Act (MSPA), and the OSH Act provide for
criminal sanctions. CAPAF is concerned that, if not, there would be a
``significant loophole.''
The Department declines to modify the final Guidance in response to
this comment. The Order does not reference criminal violations of the
Labor Laws. The Order requires disclosure only of a civil judgment,
arbitral award or decision, or administrative merits determination, and
a criminal conviction is not encompassed within those terms.\38\
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\38\ While disclosure of criminal convictions is not required
under the provisions of the Order, the Department notes that the FAR
does require contractors to disclose criminal convictions in certain
circumstances. See FAR 52.209-7.
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OSHA State Plans
The Order directs the Department to define the State laws that are
equivalent to the 14 identified Federal labor laws and Executive
orders. Order, section 2(a)(i)(O). The Proposed Guidance stated that
OSHA-approved State Plans are equivalent State laws for purposes of the
Order's disclosure requirements because the OSH Act permits certain
States to administer OSHA-approved State occupational safety-and-health
plans in lieu of Federal enforcement of the OSH Act. See 80 FR 30574,
30579.
Several commenters addressed the inclusion of OSHA-approved State
Plans as equivalent State laws. One labor organization commenter agreed
that State Plans are equivalent to the OSH Act, as the State Plans
function in lieu of the OSH Act in those States, and the National
Council for Occupational Safety and Health (National COSH) called it
``essential'' to the Order's purpose that both the OSH Act and ``its
state law equivalents'' be included.
In contrast, the U.S. Chamber of Commerce argued that the State
Plans are not equivalent State laws. The Chamber noted that while State
Plans must be ``at least as effective'' as the Federal OSHA
program,\39\ substantial differences nevertheless exist, because some
State Plans ``impose requirements . . . that are not required by, or
differ from, federal law.''
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\39\ See Section 18(c) of the OSH Act, 29 U.S.C. 667 (c).
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The Department declines to modify this aspect of the Proposed
Guidance. As an initial matter, the Department interprets the Chamber's
comment to suggest that a State law must be identical to be considered
``equivalent'' under the Order. The Department notes that other
commenters emphasized that ``equivalent'' does not equate to
``identical.'' The Department agrees with these commenters; requiring
equivalent State laws to be identical would be underinclusive because
State laws are rarely if ever identical to Federal laws.
The Department finds State Plans to be equivalent to the OSH Act
because they perform the same functions as OSHA--setting standards,
conducting enforcement inspections, and issuing citations. OSHA has
only limited enforcement authority in those twenty-two States with
State Plans, so failing to include OSHA State Plans as equivalent State
laws would lead to a gap in disclosure for safety-and-health violations
in those States under the Order. Including the State Plans results
[[Page 58664]]
in a more level playing field than would excluding them. For these
reasons, the Guidance adopts the inclusion of OSHA-approved State Plans
as equivalent State laws. The Guidance now also includes additional
resources about State Plans and a link to a list of OSHA-approved State
Plans on the OSHA Web site.
Disclosure of All Relevant Violations
Several industry commenters objected to disclosing Labor Law
violations where the underlying conduct did not occur in the course of
performance of a Federal contract. In contrast, several employee-
advocacy groups supported requiring contractors to disclose Labor Law
violations regardless of whether the violation arose from the
performance of a Federal contract.
The Order's disclosure requirement does not distinguish between
violations committed during performance of a Federal contract and those
that are not. See Order, sections 2(a)(i), 2(a)(iv)(A). The Order aims
to incorporate the full picture of a contractor's Labor Law compliance
into the responsibility determination process. A contractor's past
performance--whether in the course of performing a Federal contract or
not--is an indicator of the contractor's future performance.\40\ It is
also relevant to a determination of the contractor's integrity and
business ethics. The existing responsibility determination process
already requires contractors to disclose unlawful conduct that may not
have occurred during work on government contracts. FAR 52.209-
5(a)(1)(i)(B)-(D). Thus, contractors must disclose any Labor Law
decision issued for a violation of the Labor Laws, even if the
violation was not committed in the performance of work on a Federal
Government contract or subcontract. Because some commenters thought
this was not clear in the Proposed Guidance, the Department modifies
the Guidance for clarity.
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\40\ This principle is the same one a contractor uses when
conducting a review of prospective subcontractors. A contractor
would consider any prior misconduct or performance problems by the
subcontractor, regardless of where the problems occurred and for
which contractor the subcontractor was working at the time they
occurred.
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Violations Related to Actions or Omissions of a Federal Agency
Several industry commenters suggested that contractors should not
be required to disclose Labor Law violations that result from actions
or omissions of the contracting agency. For example, two such
commenters cited a wage violation resulting from the failure of the
contracting agency to include the applicable clause or wage
determination in the contract. Furthermore, although one trade
association commenter and one advocacy organization commenter
acknowledged that the Proposed Guidance would allow contractors to
present additional information and mitigating factors along with the
disclosed violation, they expressed concern that the information will
not be properly evaluated.
The Department declines to adopt the proposed changes to the
Guidance. It recognizes that some Labor Law violations may result where
a Federal contract did not include a required clause or wage
determination. Whatever the reason for the failure to include the
required clause or wage determination, a violation still occurred. See,
e.g., 41 CFR 60-1.4(e) (stating that the Executive Order 11246 equal
opportunity clause ``shall be considered to be a part of every
[covered] contract . . . whether or not it is physically incorporated
in such contracts''). Thus, the Department believes the better approach
is to take this information into account as a mitigating factor, rather
than to make exceptions to the disclosure requirements.
The Proposed Guidance was clear that contractors are encouraged to
submit any additional information they believe may be helpful in
assessing the violations at issue--particularly mitigating information.
The Proposed Guidance stated that mitigating factors can include
situations where the findings of the enforcement agency, court,
arbitrator, or arbitral panel support a conclusion that the contractor
acted in good faith and had reasonable grounds for believing that it
was not violating the law. 80 FR 30574, 30591. As discussed below, the
Guidance lists ``good faith and reasonable grounds'' as a mitigating
factor that weighs in favor of a recommendation that a contractor has a
satisfactory record of Labor Law compliance. That discussion
specifically provides the example of a situation where a violation is
caused by the failure of a contracting agency to include a required
clause in the contract.
Disclosure of ``Relatively Minor'' Violations
The Association of General Contractors (AGC) suggested that it is
``burdensome and unfair'' to require the disclosure of ``relatively
minor violations'' that are not serious, repeated, willful, or
pervasive as defined by the Department. Because only violations deemed
serious, repeated, willful, or pervasive bear on the assessment of the
contractor's integrity and business ethics, AGC recommended that only
those violations should be disclosed.
The Department declines to adopt AGC's proposal. The Order plainly
requires contractors to disclose all violations of the Labor Laws that
result in Labor Law decisions. The disclosed violations are then
classified as serious, repeated, willful, and/or pervasive--or not. See
Order, sections 2(a)(i), 2(a)(iv)(A), 4(a)-(b). Only those violations
classified as serious, repeated, willful, and/or pervasive will be
considered as part of the weighing step and will factor into the ALCA's
written analysis and advice. Violations determined by the ALCA to not
be serious, repeated, willful, or pervasive will be annotated as such
in the analysis that the ALCA provides to the contracting officer.
Disclosure of Violations That Are Subsequently Settled
Jenner & Block LLP commented that it was unfair to require
disclosure of violations that have been settled, thus rendering them
``potentially sanctionable[ ] event[s].'' According to the comment,
doing so would cause ``the Federal government to violate its own
contractual obligations'' when there is a non-admission provision in
the settlement agreement.
The Department declines to amend the Guidance's treatment of
settled violations. The Order requires the disclosure of violations,
and the fact that a violation was subsequently settled does not negate
the fact that the enforcement agency, after a thorough investigation,
found a violation to have occurred.
In some settlements, the enforcement agency may agree as part of
the settlement to vacate a prior administrative merits determination.
In such a case, the settlement would have the same effect as a court
decision reversing or vacating the original violation. As the Guidance
notes, in such a circumstance, the contractor does not need to disclose
the original Labor Law decision. See Guidance, section II(B)(4).
Unless an enforcement agency has agreed to vacate or rescind the
underlying violation entirely, however, the contractor must still
disclose the related Labor Law decisions when required by the Order,
notwithstanding any settlement agreement. A non-admission provision,
for example, does not generally involve an enforcement agency's
agreement to withdraw any finding of a violation. Thus, a non-admission
provision does not affect the
[[Page 58665]]
existence of any prior Labor Law decision, and therefore does not
change the Order's requirement that a contractor must disclose any
Labor Law decision that preceded the settlement. Similarly, an
enforcement agency will not include, and an ALCA will not consider,
language in a settlement agreement purporting to determine or affect
whether a violation or related Labor Law decision must be disclosed
under the Order.\41\
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\41\ Nor will an enforcement agency include, or an ALCA
consider, language in a settlement agreement purporting to determine
how a violation will be classified under the Order (e.g., language
stating that, for the purposes of the Order, the violation was not
serious, willful, repeated, or pervasive).
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Although settlement agreements will not affect a contractor's
disclosure requirements under the Order, a settlement agreement may be
an important factor in the ALCA's overall assessment of the
contractor's compliance record. The Order requires ALCAs to consider
steps taken to correct the violation or improve compliance, and the
Guidance accordingly provides that the remediation of a Labor Law
violation through a settlement agreement is an important mitigating
factor that can weigh in favor of a satisfactory record of Labor Law
compliance. See Guidance, section III(B)(1).
Comments About Specific Subsections
The Order instructs the Department to define the three categories
of Labor Law decisions that must be disclosed: ``administrative merits
determination,'' ``civil judgment,'' and ``arbitral award or
decision.'' Order, section 2(a)(i).
1. Defining ``Administrative Merits Determination''
In the Proposed Guidance, the Department described an
administrative merits determination as including
notices or findings--whether final or subject to appeal or further
review--issued by an enforcement agency following an investigation
that indicates that the contractor or subcontractor violated any
provision of the Labor Laws.
80 FR 30574, 30579-80.
The Department defined ``enforcement agency'' as including the
Department and its agencies--OSHA, WHD, and the Office of Federal
Contract Compliance Programs (OFCCP). Enforcement agencies also include
the Occupational Safety and Health Review Commission (OSHRC); the Equal
Employment Opportunity Commission (EEOC); the National Labor Relations
Board (NLRB); and certain State agencies.
The Department identified the specific notices and findings issued
by these agencies that are administrative merits determinations. The
Department provided that administrative merits determinations also
include ``a complaint filed by or on behalf of an enforcement agency
with a Federal or State court, an administrative judge, or an
administrative law judge alleging that the contractor or subcontractor
violated any provision of the Labor Laws,'' and ``any order or finding
from any administrative judge, administrative law judge, the
Department's Administrative Review Board [(ARB)], the [OSHRC] or State
equivalent, or the [NLRB] that the contractor or subcontractor violated
any provision of the Labor Laws.'' 80 FR 30574, 30579-80. This list of
notices, findings, and documents was an exhaustive one.
a. Inclusion of Nonfinal and Appealable Decisions
A number of industry commenters objected on due process and related
grounds to the inclusion of nonfinal and appealable decisions in the
definition of ``administrative merits determination.'' These commenters
characterized such determinations as ``allegations.'' One form comment
submitted by various employers and employer groups asserted that
requiring disclosure of nonfinal agency actions could cause contractors
to lose a contract because of cases that are not yet fully adjudicated.
The form comment stated that this would infringe upon Federal
contractors' due process rights.
These commenters also argued that the notices, findings, and
documents identified as administrative merits determinations in the
Proposed Guidance often reflect mistakes by the enforcement agencies
and/or are often reversed or settled, and that requiring disclosure of
nonfinal and appealable determinations assumes that contractors are
guilty until proven innocent. One form comment asserted that a number
of the proposed administrative merits determinations are ``routinely
overturned once the initial determination is challenged.'' A few of
these commenters asserted that the disclosure of ``nonfinal
allegations'' may cause economic and reputational harms to contractors,
particularly if the reported violation is later reversed.
For these commenters, administrative merits determination should
include only final and adjudicated agency decisions. Jenner & Block, in
a representative comment, suggested that only ``final decision[s] of
administrative bodies with quasi-judicial authority'' should be
administrative merits determinations. These commenters suggested that
such a limit might include only decisions of administrative bodies such
as OSHRC or the ARB, and those decisions of individual administrative
law judges that are not appealed and therefore become final agency
actions.
Several commenters, including the Society for Human Resource
Management, the Council for Global Immigration, and the College and
University Professional Association for Human Resources, also noted
that the FAR Council's ``Contractor Responsibility'' rulemaking in 2000
,\42\ which was later rescinded, would have required the reporting of
``adverse decisions by federal administrative law judges, boards or
commissions'' but not ``preliminary agency assessments.'' One industry
commenter asserted that the FAR Council previously rejected the notion
that nonfinal allegations should influence the procurement process.
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\42\ Federal Acquisition Regulation; Contractor Responsibility,
Labor Relations Costs, and Costs Relating to Legal and Other
Proceedings, 65 FR 80256 (Dec. 20, 2000).
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In contrast, union and worker-advocacy commenters supported the
scope of agency determinations included in the proposed definition of
administrative merits determination. For example, Change to Win (CTW)
emphasized its strong support for including initial agency findings in
the responsibility inquiry because, otherwise, violations would go
undisclosed while ``awaiting the outcome of potentially and often
frivolous employer challenges to such findings and orders.'' Another
commenter, North America's Building Trades Unions (NABTU), explained
that:
[t]he fact that a government enforcement agency has decided, after
conducting an investigation, to pursue a citation, complaint or
other action against a contractor is a signal of potential serious
problems that could go unreported if the contractor were permitted
to wait until the case is completely adjudicated--a process that can
take years[.]
The Department believes that the due process and related critiques
of the proposed definition of administrative merits determination are
unwarranted. The Order delegates to the Department the authority to
define the term. See Order, section 2(a)(i). The proposed definition is
consistent with the Order and the authority delegated. The Department
limited the definition to a finite number of findings, notices, and
documents--and only those issued ``following an investigation by the
[[Page 58666]]
relevant enforcement agency.'' 80 FR 30574, 30579.
If the Department limited its definition of administrative merits
determination solely to findings of an ALJ, board, or commission, then
thousands of uncontested enforcement agency determinations that Labor
Laws have been violated would go undisclosed. For example, most WHD
determinations that the FLSA's minimum wage and/or overtime provisions
have been violated are never contested before an adjudicative body;
rather, they are resolved prior to any litigation by the employer
agreeing to pay the back wages reflected in a WH-56 form. Likewise,
89.1 percent of citations issued by OSHA between October 1, 2012 and
September 30, 2015 were not contested or were settled using OSHA's
informal settlement agreements or expedited informal settlement
agreements.\43\ And, at the NLRB, the settlement rate for meritorious
unlawful labor practices cases was 92.4 percent in fiscal year
2015.\44\
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\43\ This information and additional information below regarding
OSHA citations were compiled from citations issued by Federal OSHA
offices (as opposed to by State agencies under OSHA-approved State
Plans) and recorded in OSHA's Information System.
\44\ NLRB, ``NLRB FY 2015 Performance and Accountability
Report'' 36, https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1674/14445%20NLRB%20PAR%202015%20v2_508.pdf.
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Moreover, a narrower definition of administrative merits
determination would also exclude all those initial agency
determinations that a contractor is actively contesting. Excluding
these determinations would in many cases result in a particularly long
delay between the prohibited conduct and the obligation to disclose.
For example, contested OSHA citations frequently take years to become
final. In the interim, a contractor with many OSHA citations could
secure Federal contracts without any consideration of those citations.
In addition, the assertion by some commenters that administrative
merits determinations are routinely overturned is not the case. For
example, in fiscal year 2015 the NLRB's litigation success rate before
ALJs and the Board was 88 percent, and 80 percent of Board decisions
were enforced in whole or in part by courts of appeals.\45\ An even
smaller percentage of all OSHA citations--less than 2 percent--are
later vacated.
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\45\ Id. at 36, 58.
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The definition of administrative merits determination simply
delineates the scope of contractors' disclosure obligations--the first
stage in the Order's process. Not all disclosed Labor Law decisions are
relevant to a recommendation regarding a contractor's integrity and
business ethics. Only those that involve violations classified as
serious, repeated, willful, and/or pervasive will be considered as part
of the weighing step and will factor into the ALCA's written analysis
and advice.\46\ Moreover, when disclosing Labor Law decisions, a
contractor has the opportunity to submit all relevant information it
deems necessary to demonstrate responsibility, including mitigating
circumstances and steps taken to achieve compliance with Labor Laws.
See FAR 22.2004-2(b)(1)(ii). As the Guidance provides, the information
that the contractor is challenging or appealing an adverse
administrative merits determination will be carefully considered. The
Guidance also states that Labor Law violations that have not resulted
in final determinations, judgments, awards, or decisions should be
given lesser weight. The Department believes that contractors'
opportunity to provide all relevant information--including mitigating
circumstances--and the Guidance's explicit recognition that nonfinal
administrative merits determinations should be given lesser weight
resolve any due process concerns raised by the commenters.
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\46\ In addition, contractors are encouraged to disclose the
subsequent reversal or modification of Labor Law decisions, which
will reduce the potential impact of any erroneous administrative
merits determination.
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b. Specific Categories of Administrative Merits Determinations
In the Proposed Guidance, the Department enumerated an agency-by-
agency list of notices, findings, and documents that will be considered
to be administrative merits determinations. A number of commenters
commented about these agency-specific lists.
WH-56 Summary of Unpaid Wages Form
The Proposed Guidance identified several types of documents issued
by WHD, including a WH-56 ``Summary of Unpaid Wages'' form (WH-56
form), as administrative merits determinations. See 80 FR 30574, 30579.
Several industry commenters objected to the inclusion of the WH-56 form
as an administrative merits determination. For example, one commenter,
SAIC, stated that a WH-56 form is ``not an admission of liability'' but
``a mechanism of settlement to resolve conflicts arising out of the
investigation, and has been used as a practical and effective means of
resolving complaints short of the litigation process.'' Another
commenter, Jenner & Block, argued that a WH-56 form is ``not a `merits
determination' at all,'' ``includes solely a list of names, dates, and
dollars owed,'' and ``contains no description of the purported
violation, and no findings regarding any investigation that may have
preceded its issuance.'' And another commenter, Jackson Lewis LLC,
asserted that WH-56 forms are regularly issued ``before the employer
has been provided a full opportunity to refute the basis of alleged
violations and/or back pay calculated by the DOL in connection with the
alleged violation,'' and are issued in a ``speculative and
inconsistent'' manner.\47\
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\47\ One commenter, Littler's Workplace Policy Institute, stated
that the Department ``would require a contractor to report as an
`administrative merits determination' a FLSA letter determination
from the Wage and Hour Division, yet the agency has vigorously
argued that such letters do not constitute final agency action that
a company can challenge.'' However, the Order does not indicate that
the required disclosures be defined by reference to the
Administrative Procedure Act. Rather, the Order requires the
disclosure of ``administrative merits determinations'' and
authorizes the Department to define that term.
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The Department retains the WH-56 form as an administrative merits
determination in the Guidance. WH-56 forms reflect WHD's determination
that an employer violated one or more wage-and-hour laws and owes back
wages. The WH-56 forms contain the specific amount of back wages due to
each employee, the statute(s) violated, and the date(s) of the
violation(s). WHD issues WH-56 forms only after an investigation--
during which employers are given the opportunity to provide relevant
information and articulate their legal position. Moreover, WHD's policy
is to issue a WH-56 form only after the employer has been informed of
the investigation findings, has been provided an opportunity to explain
the reasons for the violation(s), has been advised of how to comply
with the law(s) at issue, and, most importantly, has agreed to fully
comply with the law(s) going forward. In almost every case when WHD
issues a WH-56 form, there is no further violation determination by
WHD, a court, or an ALJ; the WH-56 is almost always the final
assessment of an employer's back wage liability. In 88.2 percent of
cases concluded in fiscal years 2013 through 2015 in which WHD issued a
WH-56 form after determining that a Labor Law was violated, the
employer paid all or some (usually all) of the back wages due on the
form.\48\
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\48\ This information was compiled from data recorded in the
Wage and Hour Investigative Support and Reporting Database
maintained by WHD. When the employer does not pay back wages due, it
may be because it is unable to pay or refuses to pay, or for some
other reason. When the employer does not pay, the Department may
pursue further action, including litigation.
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[[Page 58667]]
OSHA Citations
The Proposed Guidance identified several types of documents issued
by OSHA, including citations, as administrative merits determinations.
See 80 FR 30574, 30579. Some industry commenters opposed the use of
OSHA citations as administrative merits determinations. For example,
Jenner & Block, citing OSHA's regulations at 29 CFR 1903.14(a)-(b) and
1903.15(a), argued that ``an OSHA citation is merely an `alleged
violation,' not a merits determination,'' and ``is issued merely if an
OSHA Area Director `believes' that an employer has violated an OSHA law
or regulation, not after a `determination' has been made'' (emphasis in
original). This comment emphasized that ``when a contractor receives a
citation, the employer has received very limited information about the
enforcement agency's facts and legal position regarding the alleged
violation . . . a citation is merely an allegation of violation of
specified or general duty OSHA standards.'' Associated Builders and
Contractors asserted that ``most OSHA citations are routinely changed
after investigation and negotiation between the employer and the
investigating agency, resulting in a lesser fine or type of citation.''
The Department retains the OSHA citation as an administrative
merits determination in the Guidance. OSHA issues citations only after
conducting inspections during which OSHA affords employers the
opportunity to put forth their position. The OSHA regulations cited
above simply recognize that, under the applicable administrative
scheme, citations are not ``final,'' may be contested, and are
``alleged'' until they are made final--either by OSHRC adjudication or
because they were not contested. See 29 U.S.C. 659(a), (c). That does
not mean that citations are not reasoned agency determinations that an
OSH Act violation has occurred. Moreover, as the Supreme Court has
recognized, OSHA citations can be entitled to deference:
The Secretary's interpretation of OSH Act regulations in an
administrative adjudication, however, is agency action, not a post
hoc rationalization of it. Moreover, when embodied in a citation,
the Secretary's interpretation assumes a form expressly provided for
by Congress.
Martin v. OSHRC, 499 U.S. 144, 157 (1991) (citing 29 U.S.C. 658)
(emphasis in original).
Furthermore, contrary to some commenters' claims, OSHA citations
are rarely overturned. Of citations issued between October 1, 2012 and
September 30, 2015, 89.1 percent were not formally contested and either
became final under 29 U.S.C. 659(a) or were settled using OSHA's
informal settlement agreements or expedited informal settlement
agreements. Of those that were contested, over one-half (58.7 percent)
have settled, and the vast majority (82 percent) of those settlements
upheld at least part of the citation. Of those that did not settle, the
citation was upheld in the vast majority (81.6 percent) of contested
cases that have been resolved by an ALJ, OSHRC, or a court as of April
2016 (some contested cases from the time period are ongoing), more
often than not without any reduction in penalty. Less than 2 percent of
all of the citations issued during the time period have been vacated.
OFCCP Show Cause Notices
The Proposed Guidance identified ``a show cause notice for failure
to comply'' issued by OFCCP as an administrative merits determination.
See 80 FR 30,574, 30,579. OFCCP uses such notices to enforce the
affirmative action and nondiscrimination rules in Executive Order 11246
and other laws.
Some industry commenters argued that OFCCP show cause notices
should not be considered administrative merits determinations. For
example, one commenter, Roffman Horvitz, objected to the inclusion of
show cause notices because they are not ``final agency determinations
reviewable in the Federal courts under the Administrative Procedures
Act.'' According to this comment, OFCCP issues show cause notices to
contractors at the outset of audits if the contractor does not provide
the requested information within an initial 30-day period. The
commenter alleged that OFCCP ``has become extremely reluctant to grant
extensions of time'' of that period and ``approaches conciliation with
a take-it-or-leave-it attitude.''
Another commenter, DirectEmployers Association, stated that a show
cause notice generally contains ``alleged violations related to highly
technical Affirmative Action Program drafting and recordkeeping issues,
or a failure to engage in adequate outreach and recruitment of women
and/or minorities.'' This commenter asserted that a ``very small
minority of the [show cause notices] that OFCCP issues may also contain
allegations of unlawful discrimination (typically fewer than in 2
percent of all OFCCP audits).''
The same commenter also stated that ``routine'' show cause notices
are issued ``prior to . . . completion of the investigatory phase of
the audit'' and ``prior to considering the contractor's response to the
agency's preliminary investigative conclusions'' (emphasis in
original). According to this commenter, ``oftentimes the alleged
violations raised in [a show cause notice] are voluntarily withdrawn by
OFCCP,'' ``are resolved through conciliation, or are later dismissed by
an administrative court.''
The Department retains the OFCCP show cause notice as an
administrative merits determination. OFCCP issues a show cause notice
when it determines that a contractor has violated one or more of the
laws under OFCCP's jurisdiction. See Federal Contract Compliance
Manual, ch. 8D01 (Oct. 2014). OFCCP issues fewer than 200 show cause
notices per year, and issues them after a substantial process. OFCCP
typically issues show cause notices after it has investigated, made
findings, issued a notice of violation,\49\ given the contractor an
opportunity to respond, considered any response from the contractor,
and attempted to resolve the issue through conciliation. OFCCP may
issue a show cause notice if a contractor fails, after being requested
by OFCCP, to submit the affirmative action plans or other information
that it is required by law to maintain. Contrary to the commenter's
assertion, OFCCP gives a contractor multiple chances, including
extensions of time, to provide the requested information; and it gives
a contractor the opportunity to explain its position before issuing a
show cause notice. OFCCP must, if other efforts are unsuccessful, issue
show cause notices in those few circumstances when contractors refuse
to comply with their legal obligations to provide information. These
obligations are crucial to OFCCP's ability to enforce its laws and
investigate potential violations. Indeed, OFCCP cannot determine
whether there was in fact unlawful discrimination until it receives the
plans or other information that the contractor is required by law to
maintain and provide.
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\49\ Notices of violations are not administrative merits
determinations under the Order.
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EEOC Letters and Actions
The Proposed Guidance identified ``a letter of determination that
reasonable cause exists to believe that an unlawful employment practice
has occurred or is occurring'' issued by the EEOC and ``a civil action
filed on behalf of the EEOC'' as administrative merits determinations.
See 80 FR 30574, 30579.
Several industry commenters objected. Some argued that reasonable
cause letters are a preliminary action
[[Page 58668]]
and are not based on sound proof that a violation actually occurred.
Some asserted that few reasonable cause findings result in a court
complaint or an eventual judgment. Others noted that reasonable cause
findings are often excluded as evidence in subsequent litigation
because their prejudicial value outweighs their probative value.
The Department retains reasonable cause letters as a type of
administrative merits determination. An EEOC reasonable cause
determination reflects an assessment of a charge's merits: ``that there
is reasonable cause to believe that the charge is true,'' 42 U.S.C.
2000e-5(b), based on information obtained in the investigation,
including that provided by the employer, see EEOC, ``What You Can
Expect After a Charge is Filed,'' http://www.eeoc.gov/employers/process.cfm. In fiscal year 2015, about 3.5 percent of charges filed
with the EEOC resulted in reasonable cause determinations.\50\ After
making a reasonable cause determination, the agency transitions from
its investigatory, fact-finding role to its role as a conciliator and,
if conciliation efforts fail, the agency becomes a potential litigant
with authority to file a lawsuit to protect the public interest,
including to obtain relief for individuals harmed by the discriminatory
practices on which reasonable cause was found. The agency does not
revisit the reasonable cause determination in conciliation. Rather, the
EEOC must try to ``eliminate'' the ``alleged unlawful employment
practice'' through conciliation before it can sue. 42 U.S.C. 2000e-
5(b).
---------------------------------------------------------------------------
\50\ The EEOC data in this paragraph and the following paragraph
are available on the EEOC's Web site at http://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm.
---------------------------------------------------------------------------
That the EEOC decides to sue in a relatively small percentage of
cases in which it has found reasonable cause has little to no bearing
on the determinations' merits. A large portion of reasonable cause
determinations are conciliated. See 42 U.S.C. 2000e-5(b) (describing
the conciliation process). For example, in fiscal years 2014 and 2015
combined, the EEOC successfully conciliated 41 percent of its
reasonable cause determinations. Because of limited resources, EEOC can
file lawsuits in only a small proportion of cases where it finds
reasonable cause. Rather, the EEOC decides which cases to litigate
based on a range of factors, including ``the wider impact the lawsuit
could have on EEOC efforts to combat workplace discrimination.'' EEOC,
``Litigation Procedures,'' http://www.eeoc.gov/eeoc/litigation/procedures.cfm. Thus, the Department concludes that it is appropriate
to include EEOC reasonable cause letters as administrative merits
determinations.
As mentioned above, the Proposed Guidance also included as an EEOC
administrative merits determination ``a civil action filed on behalf of
the EEOC.'' 80 FR 30574, 30579. This was unnecessary because the
Proposed Guidance generally identified complaints filed by or on behalf
of enforcement agencies with courts as administrative merits
determinations. The Department eliminates this redundancy in the final
Guidance.
NLRB Complaints
The Proposed Guidance identified ``a complaint issued by any
Regional Director'' of the NLRB as an administrative merits
determination. 80 FR 30574, 30579. Several industry commenters opposed
this proposal, arguing that such complaints are only allegations. For
example, one such commenter, the Littler Workplace Policy Institute,
characterized such complaints as being based on ``investigatory
findings without judicial or quasi-judicial safeguards.'' This
commenter further argued that ``[e]ven the [NLRB]'s own determinations
are not self-enforcing, as section 10 of the NLRA makes clear, because
only a court of appeals can enforce orders of the Board.''
Industry commenters also asserted that a relatively low percentage
of complaints issued by NLRB Regional Directors result in NLRB
determinations, and that even fully litigated NLRB decisions are often
overturned by courts of appeals. And commenters stated that the NLRB
sometimes pursues legal theories that have been rejected by some U.S.
Courts of Appeals, meaning a contractor could be forced to disclose a
decision involving conduct that some courts have ruled does not amount
to a violation. Others argued that they must purposefully violate the
NLRA in certain circumstances in order to test the validity of the
NLRB's certification of a representation election in Federal court.
The Department retains the definition of administrative merits
determinations for NLRA violations as proposed. The Department
disagrees with the premise of the industry commenters' comments. As
discussed above, the fiscal year 2015 NLRB settlement rate was 92.4
percent, the litigation success rate of General Counsel complaints
before ALJs and the Board was 88 percent, and 80 percent of Board
decisions were enforced in whole or in part by Courts of Appeals. The
Department also disagrees that NLRB complaints should not be disclosed
because some employers may purposefully violate the NLRA to ``test''
the validity of an election. Disclosure is only the first step in the
Order's process; when disclosing Labor Law decisions, contractors are
encouraged to submit all relevant information, including mitigating
factors.
Some labor organizations suggested that the definition of
``administrative merits determination'' should be expanded. These
commenters advocated including as administrative merits determinations
those NLRB General Counsel findings in which the General Counsel
notifies employers that it will issue a complaint absent settlement.
The Department considers this addition to be unwarranted. If the
General Counsel does issue a complaint, the complaint itself will be an
administrative merits determination that must be disclosed.
Accordingly, the Department maintains the definition as proposed.
Complaints Filed With Courts or Administrative Agencies
The list of administrative merits determinations in the Proposed
Guidance included ``a complaint filed by or on behalf of an enforcement
agency with a Federal or State court, an administrative judge, or an
administrative law judge alleging that the contractor or subcontractor
violated any provision of the Labor Laws.'' 80 FR 30574, 30579.
Several industry commenters criticized this category. One
commenter, Jenner & Block, stated that a civil action ``can only
represent a set of allegations and can never be viewed as a
determination on the merits'' (emphasis added). Another commenter
questioned whether the Department was justified in distinguishing
between a government agency's complaint and a private litigant's
complaint--as the latter was not included as an administrative merits
determination.
The Department retains the Guidance as proposed. The distinction
between complaints filed by an enforcement agency and complaints filed
by private parties to initiate lawsuits is valid. Agencies pursue
litigation only after fully investigating the case, soliciting the
adverse party's position, and making efforts to resolve the matter.
Thus, the filing of a complaint by an enforcement agency in court or
before an administrative agency is an agency determination that the
relevant law has been violated.\51\ Moreover, the inclusion
[[Page 58669]]
of court complaints filed by or on behalf of enforcement agencies is
necessary because some of the most egregious violations of the Labor
Laws found by agencies may be enforced only through court actions
depending on the particular Labor Law's enforcement scheme.
---------------------------------------------------------------------------
\51\ Jenner & Block asserted that including ``civil actions as
reportable events directly conflicts with the terms of the Order,
which requires only `civil judgments' to be reported.'' (emphasis
added). However, the Order separately requires ``administrative
merits determinations'' to be disclosed, and for the reasons
explained above, a complaint filed by an enforcement agency in court
or before and administrative agency is an administrative merits
determination even though it is not a civil judgment.
---------------------------------------------------------------------------
Finally, while it is true that not every complaint filed by an
enforcement agency succeeds, the Department reiterates that the
definition of administrative merits determination is relevant only to
the initial disclosure requirement. The definition simply determines
the scope of contractors' disclosure obligations--the first step in the
Order's process. Not all disclosed violations are relevant to
contractors' integrity and business ethics; only those that are
serious, repeated, willful, and/or pervasive will be considered as part
of the weighing step and will factor into the ALCA's written analysis
and advice.
Retaliation Violations
Several commenters representing labor and worker advocacy
organizations advocated that the definition of ``administrative merit
determinations'' include notices or findings of violations of the anti-
retaliation provisions of the OSH Act, 29 U.S.C. 660(c) (``Section
11(c)''), and the FLSA, 29 U.S.C. 215(a)(3) (``Section 15(a)(3)'').
These anti-retaliation provisions are vital components to the
enforcement of the OSH Act and the FLSA, and the Department did not
intend to exclude them. The relevant administrative merits
determination for these anti-retaliation violations is a complaint
filed on behalf of the agency in court. As discussed above, such
complaints are included in the Guidance's definition of
``administrative merits determination.'' \52\
---------------------------------------------------------------------------
\52\ This would also cover the OSHA-approved State Plans that
enforce their equivalents to section 11(c) through State courts. To
the extent some State Plans enforce their anti-retaliation
provisions through administrative processes, the relevant
administrative merits determinations will be identified in the
second guidance to be issued by the Department identifying the State
laws that are equivalent to the Federal Labor Laws.
---------------------------------------------------------------------------
In addition to such court actions, WHD also may issue determination
letters finding retaliation in violation of FLSA section 15(a)(3). The
Proposed Guidance incorrectly limited the residual category of
administrative merits determinations to ``a letter indicating that an
investigation disclosed a violation of sections six or seven of the
FLSA . . .'' \53\ To assure that WHD letters finding a retaliation
violation will be disclosed, the Department has revised the Guidance to
remove the phrase ``of sections six or seven.'' Thus, a WHD
determination letter finding any FLSA violation--not just minimum wage
and overtime violations--is an administrative merits determination.
---------------------------------------------------------------------------
\53\ Sections six and seven refer to the FLSA's minimum wage and
overtime provisions, 29 U.S.C. 206, 207.
---------------------------------------------------------------------------
One commenter expressed concern that violations of the anti-
retaliation provisions of the statutes enforced by the EEOC may not
meet the definition of administrative merits determinations because it
is possible that retaliation is not an ``unlawful employment
practice.'' The Department and the EEOC consider the phrase ``unlawful
employment practice'' to include unlawful retaliation.
False Statement Violations Under the OSH Act
One commenter requested that the Guidance include violations of
section 17(g) of the OSH Act, 29 U.S.C. 666(g), which prohibits
knowingly making false statements in reports or other documents
required to be maintained by the OSH Act, as violations that must be
disclosed under the Order. False statement violations have only
criminal sanctions under the OSH Act. See id. As discussed above,
criminal convictions of the Labor Laws are not reflected in the
administrative merits determinations, civil judgments, or arbitral
awards or decisions that must be disclosed. The Department therefore
declines to amend the Guidance as requested.
c. Settlements
Several commenters representing labor and worker advocacy
organizations urged the Department to define administrative merits
determination to expressly include settlements reached with an
enforcement agency before the institution of legal proceedings, which
would mean that contractor would be required by the Order to disclose
any such settlements as ``Labor Law decisions.'' Commenters argued that
their proposal would address a concern that employers might repeatedly
negotiate preemptive settlements with an enforcement agency during an
investigation, and thus avoid the issuance of a Labor Law decision that
would otherwise have to be disclosed. In such situations, according to
these commenters, these employers' apparently clean records would not
reflect their repeated unlawful conduct. Another commenter agreed that
settlements should not be considered reportable findings of violation,
but argued that they should nevertheless be disclosed as part of a
responsibility determination. Another sought clarification whether a
settlement reached prior to a complaint being filed must be disclosed
under the Order.
The Department maintains the Guidance as proposed. Settlements are
not administrative merits determinations, and therefore contractors are
not required by the Order to disclose them. The Department believes
that the inclusion of settlements as administrative merits
determinations could serve as a disincentive against settlements.
Settlements at the earliest possible stage of a dispute are often the
ideal outcome for both employers and their employees and the most
efficient outcome for contracting agencies, as early settlements
generally include improved compliance with the Labor Laws. The
Department also notes that most settlements of agency investigations or
enforcement actions follow or are accompanied by a notice or finding
from the agency that meets the definition of an administrative merits
determination. For example, OSHA settlements usually include the
affirmation of citations. Those citations are themselves administrative
merits determinations that must be disclosed. Likewise, settlements of
FLSA investigations are often accompanied by a WH-56 form indicating
WHD's determination that back wages are due because of an FLSA
violation. The WH-56 form is an administrative merits determination and
must be disclosed. However, any settlement agreement itself is not an
administrative merits determination and therefore need not be
disclosed.
Although settlement agreements are not administrative merits
determinations, a settlement including remediation of violations is
considered to be a mitigating factor that the contractor may choose
voluntarily to disclose. As a result, in cases where a settlement
accompanies or follows a Labor Law decision that must be disclosed, the
Department anticipates that contractors will voluntarily disclose the
settlement because it is in the contractor's interest to show that it
has remedied the violation. As discussed in the preaward assessment and
advice section of the Guidance, remediation of a violation is the most
important mitigating factor in the weighing
[[Page 58670]]
process before an ALCA recommendation. See Guidance, section III(B).
In sum, the Department considers the addition of settlements
themselves as a type of administrative merits determination to be
unwarranted.
2. Defining ``Civil Judgment''
The Proposed Guidance defined ``civil judgment'' as
any judgment or order entered by any Federal or State court in which
the court determined that the contractor or subcontractor violated
any provision of the Labor Laws, or enjoined or restrained the
contractor or subcontractor from violating any provision of the
Labor Laws.
80 FR 30574, 30580. The Proposed Guidance discussed the types of court
judgments or orders that meet the definition of ``civil judgment'' and
explained that a ``private settlement where the lawsuit is dismissed by
the court without any judgment being entered is not a civil judgment.''
Id. The Proposed Guidance provided that ``civil judgment'' includes a
judgment or order that is not final or is subject to appeal. Id.
A number of industry commenters who objected to the inclusion of
nonfinal agency determinations in the definition of administrative
merits determination had similar concerns about the definition of civil
judgment. They objected to defining civil judgments to include court
judgments that are either nonfinal or still subject to appeal, and they
were concerned that they could lose a contract as a result of a
judgment that is later reversed. For these commenters, a civil judgment
should include only final orders or judgments where all appeals have
been exhausted or not pursued. In addition, several industry commenters
objected to including preliminary injunctions.
The Department has carefully considered all of these comments and
declines to limit the definition of civil judgment. The Proposed
Guidance defined civil judgment to include some nonfinal and subject-
to-appeal court judgments for the same reasons that it defined
administrative merits determinations to include nonfinal agency
determinations. In addition to those reasons, which the Department
incorporates here as well, the Department notes that it would make
little sense to exclude Federal court judgments that follow a full
discovery process under the Federal rules simply because these
judgments still may be subject to appeal or have been appealed to a
Federal court of appeals.
The Department also reiterates that the Guidance's definition of
civil judgment does not include all court decisions that are nonfinal.
The Guidance's definition is limited to those judgments or orders in
which the court ``determined'' that there was a Labor Law violation or
``enjoined or restrained'' a violation. This means that, for example, a
court order denying an employer's motion to dismiss a complaint about
an alleged Labor Law violation or an order denying an employer's motion
for summary judgment would not be ``civil judgments.'' In both of those
examples, the court has found only that it is possible that the
complainant may be able to succeed later at trial; it has not made a
determination that a Labor Law has been violated.
As several commenters noted, a type of nonfinal court order that
the Department explicitly included as a civil judgment in the Proposed
Guidance is a preliminary injunction that ``enjoins or restrains a
violation of the Labor Laws.'' 80 FR 30574, 30580. Preliminary
injunctions issued in Federal court are not considered to be ``final''
orders. However, enforcement agencies may pursue injunctive relief when
faced with the most egregious violations of the Labor Laws (for
example, imminent danger actions under the OSH Act or 10(j) injunctions
under the NLRA), and courts grant preliminary injunctions only in
extraordinary circumstances and after a strong showing of a likelihood
of success. Accordingly, the Department concludes that the granting of
such relief may be relevant to the assessment of a contractor's respect
for legal obligations and workplace conditions. It is therefore
appropriate to require disclosure.
Finally, the Department reiterates that the definition of ``civil
judgment'' simply determines the scope of contractors' disclosure
obligations--the first stage in the Order's process. Not all disclosed
violations are relevant to contractors' integrity and business ethics.
Only those that are later determined to be serious, repeated, willful,
and/or pervasive will be considered as part of the weighing step and
will factor into the ALCA's written analysis and advice. Moreover,
contractors have an opportunity to submit any additional information--
including mitigating information--that they believe may be helpful in
assessing their overall record of compliance. In sum, court judgments
and orders that meet the definition of ``civil judgment'' must be
disclosed--even where nonfinal or still subject to appeal.
While the Department is not changing the definition of civil
judgment, two clarifications are necessary. One commenter, the Equal
Employment Advisory Council (EEAC), expressed concern that the
definition of civil judgment would include temporary restraining orders
(TROs). The Proposed Guidance did not intend to include TROs under the
definition of civil judgment. TROs are distinct from preliminary
injunctions under the Federal Rules of Civil Procedure and can, in
certain circumstances, be issued without notice to the adverse party.
Compare Fed. R. Civ. Proc. 65(a) (preliminary injunctions) with Fed. R.
Civ. Proc. 65(b) (TROs). To avoid any confusion, the Guidance has been
revised to clarify that TROs are not civil judgments for the purposes
of the Order, and need not be disclosed.
Another commenter, National Security Technologies, LLC, requested
that the Department limit the definition of civil judgements to exclude
judgments entered pursuant to accepted Offers of Judgment under Federal
Rules of Civil Procedure 68, which are ``in the nature of
settlements.'' The Department agrees that accepted offers of judgment
under Rule 68 are akin to settlements and are not ``civil judgments''
for the purposes of the Order. The Guidance has been revised
accordingly.
3. Defining ``Arbitral Award or Decision''
The Proposed Guidance defined ``arbitral award or decision'' as
any award or order by an arbitrator or arbitral panel in which the
arbitrator or arbitral panel determined that the contractor or
subcontractor violated any provision of the Labor Laws, or enjoined
or restrained the contractor or subcontractor from violating any
provision of the Labor Laws.
80 FR 30580. The Proposed Guidance stated that arbitral awards and
decisions must be disclosed ``even if the arbitral proceedings were
private or confidential.'' Id. It further provided that ``arbitral
award or decision'' includes an award or order that is not final or is
subject to being confirmed, modified, or vacated by a court. Id.
Several industry commenters objected to disclosing arbitral awards
or decisions that are confidential or private. The AARP, on the other
hand, supported the disclosing of private or confidential arbitration
awards and decisions. Industry commenters contended that disclosing
awards may have a chilling effect on arbitration, that disclosure may
require the breaking of arbitration or labor contracts, and that the
confidentiality of arbitration is provided by some State laws. One
commenter, the Aerospace Industries Association, suggested excluding
[[Page 58671]]
arbitral awards from confidential or private arbitrations conducted
under arbitration agreements executed before the effective date of any
final rule implementing the Order.
The Department declines to narrow its interpretation of the
disclosure requirement to exclude confidential or private arbitrations.
The Order specifically requires the disclosure of arbitral awards or
decisions without exception, see Order, section 2(a)(i), and
confidentiality provisions generally have exceptions for disclosures
required by law. Moreover, there is nothing particularly sensitive
about the four pieces of basic information that contractors must
publicly disclose about each arbitral award or decision--the Labor Law
that was violated, the case number, the date of the award or decision,
and the name of arbitrator. See FAR 22.2004-2(b)(1)(i). Parties
routinely disclose more information about an arbitral award when they
file a court action seeking to have the award vacated, confirmed, or
modified.
In addition to the commenters discussed above who object generally
to disclosing any nonfinal determinations or judgments, some industry
commenters specifically objected to disclosing nonfinal arbitration
awards or decisions. The Department declines to modify the Guidance in
response to these comments. The disclosure of arbitral awards that are
nonfinal or still subject to court review is appropriate for all of the
same reasons discussed above supporting the Department's inclusion of
administrative merits determinations and civil judgments that are
nonfinal or subject to appeal. Furthermore, the Department notes that
the Federal Arbitration Act provides a very high standard that must be
met for a court to vacate or modify an arbitral award. See 9 U.S.C. 10
(standard for vacating award); 9 U.S.C. 11 (standard for modifying
award).
The AARP supported the proposed definition of arbitral award or
decision, but proposed broadening the definition to include awards and
decisions where the employee has succeeded ``on any significant issue
or receives even some of the benefits sought.'' Under this proposal, an
award or decision would have to be disclosed, ``even if there was no
formal determination of a legal violation.'' The Department declines to
modify the Guidance in response to this comment. The Order requires
disclosure of arbitral awards or decisions rendered against the
contractor ``for violations of any of the [Labor Laws].'' Order,
section 2(a)(i). The Department believes that this requires a finding
that a Labor Law was violated in order to trigger the Order's
disclosure requirement.
Two industry commenters requested clarification about arbitral
decisions that involve both a collective bargaining agreement (CBA) and
one of the Labor Laws. One asserted that the Guidance's disclosure
requirements should expressly exclude arbitral decisions finding CBA
violations that do not amount to statutory violations. The other
commenter, the Association of General Contractors of America (AGC),
stated that arbitral decisions involving CBAs are often unclear about
whether their rulings are ``on a matter of law, contract, or both.''
The Department agrees that an arbitrator's decision finding only a CBA
violation does not trigger the disclosure requirement. However, where
the arbitrator does make an express finding that there was a violation
of one of the Labor Laws, then the decision or award must be disclosed,
regardless of whether the same conduct also violated the CBA.
4. Successive Labor Law Decisions Arising From the Same Underlying
Violation
The Proposed Guidance addressed and gave examples regarding how
contractors should disclose successive administrative merits
determinations, civil judgments, and/or arbitral awards or decisions
that arise from the same underlying violation. See 80 FR 30580-81. One
commenter, Jackson Lewis LLC, stated that this discussion would have
been ``unnecessary'' had the Department not required disclosure of
``alleged violations.'' According to this comment, ``[n]othing in the
already dense DOL Guidance is more complex than sorting what successive
determinations must be reported and what need not be reported.'' After
considering this comment, the Department modifies this section of the
Guidance for improved readability--but does not make any substantive
changes. The Department believes that the examples provided, including
a new example, will help contractors meet their disclosure obligations
under the Order.
C. Information That Must Be Disclosed (Formerly ``What Information Must
Be Disclosed'')
The Order itself contains guidance for what information a
contractor must disclose. See Order, section 2(a). And the FAR rule
includes specific disclosure requirements and processes. See FAR
22.2004-1(a). This section of the Proposed Guidance directly tracked
the language of the proposed FAR rule. Where the FAR Council has
modified relevant language in its final rule, the Department has
modified the final Guidance accordingly. In addition, in one
nonsubstantive change to this section of the Guidance, the Department
has created a separate subsection to highlight the process for
contracting officers to give contractors the opportunity to submit any
additional relevant information (including mitigating factors) about
Labor Law violations. Several commenters submitted concerns or
suggestions about this section; however, because comments took issue
with the content of the FAR rule, the FAR Council has addressed those
comments, and the comments are not summarized or discussed here.
Specific Disclosure Requirements
The Proposed Guidance included the requirements from the proposed
FAR rule about the specific information that a contractor must
disclose, at the time of the responsibility determination, about each
Labor Law decision. It provided that, for each decision, the contractor
disclose: (1) The Labor Law that was violated; (2) the case number,
inspection number, charge number, docket number, or other unique
identification number; (3) the date of the determination, judgment,
award, or decision; and (4) the name of the court, arbitrator(s),
agency, board, or commission that rendered it. See 80 FR 30574, 30581.
Several labor unions and employee advocacy organizations suggested
requiring disclosure of more information than the four types of
information listed above. The Department retains the Guidance as
proposed. The specific disclosure requirements are promulgated in the
final FAR rule, FAR 22.2004-2(b)(1)(i), and they are included in the
Guidance only for completeness. Moreover, the Department notes that
contracting officers have an existing duty under the FAR to obtain such
additional information as may be necessary to be satisfied that a
contractor has a satisfactory record of integrity and business ethics,
see FAR 9.105-1(a), and the FAR rule requires contracting officers to
request Labor Law decision documents from contractors where the ALCA is
otherwise unable to obtain them, see FAR 22.2004-2(b)(2)(iii). While
the Department has not amended the list of specific disclosure
requirements, it has added to the final Guidance a list of the relevant
unique identification numbers for each category of violation.
[[Page 58672]]
Accuracy of Contractor Disclosures
One group of worker-advocacy organizations expressed concern that
the Guidance does not instruct contracting officials to verify the
accuracy of the information that a contractor submits. The comment
noted that a new Labor Law violation might be found against a
contractor after the contractor's initial representation about its
record. In such a case, the comment suggested, a contractor that
responds negatively at the initial representation stage should be
required at the subsequent preaward stage to provide an update about
any new violations (assuming that a responsibility determination is
undertaken at that point).
Several unions and worker-advocacy groups applauded the proposed
FAR rule and the Proposed Guidance for significantly improving
reporting requirements and public disclosures; however, they also
expressed concerns that the penalties for contractors who misrepresent
or omit information when disclosing Labor Law violations should be
strengthened. Several of these commenters argued that disclosures
regarding Labor Law violations should be provided under oath and/or
under penalty of perjury. Another commenter, the AARP, suggested that
the FAR Council should clearly state that ``failure to report
violations will lead to a determination of nonresponsibility.''
The Department does not believe that contractor representations
regarding Labor Law matters should be treated differently than other
representations related to responsibility. Under the FAR, a contractor
who fails to furnish a certification related to responsibility matters
or to furnish such information as may be requested by the contracting
officer related to that contractor's responsibility shall be given an
opportunity to remedy the deficiency. See FAR 9.104-5. Ultimately,
failure to furnish the certification or such information ``may render
the offeror nonresponsible.'' Id. In addition, well-established
penalties already exist for bad faith and material misrepresentations
regarding responsibility matters.\54\
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\54\ A contractor may be disqualified, the award canceled, or
the contract terminated if the misrepresentation is made in bad
faith or has materially influenced the agency's responsibility
determination. See Impresa Construzioni Geom. Domenico Garufi v.
United States, 238 F.3d 1324, 1339-40 (Fed. Cir. 2001). Where the
award is canceled, the contractor can be precluded from bidding on a
reprocurement contract. See Northrop Grumman Corp. v. United States,
50 Fed. Cl. 443, 468 (2001). Moreover, under appropriate
circumstances, a contractor may also be suspended or debarred, or
held liable under the False Claims Act, among other available
remedies. See 31 U.S.C. 3730; 18 U.S.C. 1001.
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The Department does recognize that a substantial period of time may
pass between the contractor's initial representation and the date of
the award. In particular, as the commenter referenced above suggested,
a contractor may initially represent that it has no Labor Law decisions
to disclose, but a Labor Law decision may be rendered against it after
that initial representation prior to the date of an award. Contractors
have a duty to provide an update to the contracting officer prior to
the date of an award if the contractor's initial representation is no
longer accurate. Thus, the final FAR rule now provides that if a new
Labor Law decision is rendered or the contractor otherwise learns that
its representation is no longer accurate, the contractor must notify
the contracting officer of an update to its representation. See FAR
52.222-57(e). This means that if the contractor made an initial
representation that it had no Labor Law decision to disclose, and since
the time of the offer the contractor has a Labor Law decision to
disclose, the contractor must notify the contracting officer. The
reverse is also true: If, for example, an offeror made an initial
representation that it has a Labor Law decision to disclose, and since
the time of the offer that Labor Law decision has been vacated by the
enforcement agency or a court, the contractor must notify the
contracting officer.
Postaward Disclosure Updates
The disclosure section of the Proposed Guidance included a
description of the Order's requirement that contractors update their
disclosures postaward, during performance of a covered procurement
contract. See 80 FR 30574, 30581. The Department has reorganized the
final Guidance to consolidate discussion of postaward disclosure and
assessment issues in a new section (Section IV). Comments about the
postaward disclosure are addressed in a parallel section of this
preamble section-by-section analysis, below.
Subcontractor Disclosures
The disclosure section of the Proposed Guidance also included an
explanation of the Order's subcontractor disclosure provisions. See 80
FR 30574, 30582. The Department has reorganized the final Guidance to
consolidate discussion of subcontractor issues in a new section
(Section V). Comments about the subcontractor disclosure provisions are
addressed in a parallel section of this preamble section-by-section
analysis, below.
III. Preaward Assessment and Advice (Formerly ``Weighing Violations of
the Labor Laws'')
Section III of the Guidance explains the process by which ALCAs
classify, weigh, and provide advice about a contractor's violations of
the Labor Laws during the preaward period. Based on the comments
received, the Department believes that the separate steps in this
process may not have been emphasized clearly enough in the Proposed
Guidance. Several commenters, for example, appeared to conflate the
determination that a contractor had committed a serious, repeated,
willful, and/or pervasive violation with a finding of
nonresponsibility.
In response to these comments, the final Guidance clarifies that
the ALCA's preaward assessment of a contractor's Labor Law violations
and the contracting officer's responsibility determination are separate
process points, performed by two separate individuals: The ALCA
assesses the nature of the violations and provides analysis and advice;
the contracting officer, informed by the ALCA's analysis and advice,
makes the responsibility determination--the determination of whether
the contractor is a responsible source to whom a contract may be
awarded. Contracting officers consider assessments provided by ALCAs
consistently with advice provided by other subject matter experts
during the responsibility determination.
The final Guidance also clarifies that the ALCA's role involves a
three-step process. First, an ALCA reviews all of the contractor's
violations to determine if any are serious, repeated, willful, and/or
pervasive. Second, the ALCA then weighs any serious, repeated, willful,
and/or pervasive violations in light of the totality of the
circumstances, including the severity of the violation(s), the size of
the contractor, and any mitigating factors that are present. Third,
after this holistic review, the ALCA provides written analysis and
advice to the contracting officer regarding the contractor's record of
Labor Law compliance, and whether a labor compliance agreement or other
action is warranted.
As noted above, the final Guidance clarifies that it is the
contracting officer who makes the final determination of whether a
contractor is, or is not, a responsible source.
The assessment of violations postaward, during the performance of
the contract, is now addressed separately in section IV of the
Guidance.
[[Page 58673]]
Similarly, the assessment of subcontractor violations is addressed
separately in section V of the Guidance.
The Department has modified Appendix E to reflect changes in the
final Guidance's description of the PreAward Assessment and Advice
process.
A. Classifying Labor Law Violations (Step One)
The first step in this process is the classification of Labor Law
violations as serious, repeated, willful, and/or pervasive. The Order
specifically directs the Department to develop guidance to assist
agencies in making these classification determinations. Order, section
4(b)(i). The Order specifies that the Department's Guidance should
``incorporate existing statutory standards for assessing whether a
violation is serious, repeated, or willful'' where they are available.
Id. In addition, the Order provides the Department with parameters for
developing standards where none are provided by statute. Id.
Subjectivity of Classification Criteria
A number of industry commenters argued that the Proposed Guidance's
definitions of serious, repeated, willful, and pervasive violations are
too subjective and do not provide enough direction for contractors to
determine whether their violations could put them at risk of losing
Federal contracts. Some commenters expressed concern that whether a
violation is serious, repeated, or willful may depend in some cases on
an exercise of discretion by the official or investigator at the
enforcement agency that issued the underlying administrative merits
determination. In contrast, many worker-advocacy organizations and
labor unions expressed support for the flexibility of these
classification criteria and the Department's overall approach to
weighing violations and assessing mitigating factors.
While the Department acknowledges that some of the criteria for
classifying Labor Law violations require closer analysis, the
Department notes that many of the definitions set out objective
criteria that leave little, if any, room for ambiguity. For example,
whether a violation involves at least $10,000 in back wages or $5,000
in fines or penalties (one of the criteria for classifying serious
violations), or whether a violation occurs within 3 years of a prior
violation (one of the criteria for classifying repeated violations) are
straightforward matters. Furthermore, the Department expects that ALCAs
will develop substantial expertise in administering the Order and will
be well-positioned to classify and weigh each violation. In some cases,
as set forth below, the Department has modified criteria that were not
sufficiently clear.
Moreover, the Department disagrees that the contracting officer's
responsibility determination will be arbitrary if it includes
consideration of the ALCA's assessment of Labor Law enforcement actions
that themselves involve the exercise of prosecutorial discretion, such
as an enforcement agency's decision as to how much of a fine or penalty
to assess, or whether to find one violation or multiple violations. The
Department believes that the legitimate exercise of such discretion is
inherent in prosecuting Labor Law violations--just as it is for
prosecuting violations of fraud, tax, and other laws that are already
expressly considered in the responsibility determination under the
FAR--and does not undermine the contracting officer's consideration of
Labor Law enforcement actions under the Order.
Furthermore, ALCAs are advisors to the contracting officer on one
aspect of responsibility: Integrity and business ethics with regard to
labor law compliance. Contracting officers consider the information
provided by advisors such as ALCAs, as well as advice from other
experts in fields such as audit, law, engineering, information
security, and transportation.
Relationship of Classification Criteria to Disclosure Requirements
A few commenters representing employers also expressed concern that
they would be uncertain as to which violations must be disclosed due to
perceived ambiguities in the definitions of serious, repeated, willful,
and pervasive violations. Such comments misapprehended the role that
these definitions play in the implementation of the Order. All Labor
Law decisions must be disclosed, whether or not they involve violations
that are serious, repeated, willful, or pervasive. As described above,
the definitions of these four terms are used by ALCAs during the
classification process to screen out minor infractions that have been
disclosed, not by contractors to determine whether the decisions must
be disclosed in the first place. The Department clarifies this point in
the final Guidance.
Standard for Determining Application of Classification Criteria
One industry commenter questioned what quantum of evidence will be
necessary to support a determination that a Labor Law violation meets
one of the criteria for establishing that a violation is serious,
repeated, willful, or pervasive. In this regard, the commenter focused
on language in the Proposed Guidance stating that a violation would
meet one of the classification criteria if the Labor Law decision
``support[s] a conclusion'' that the criterion in question had been
met, and the commenter expressed concern that this standard suggested
that contractors could be found to have committed a serious, repeated,
willful, or pervasive violation based on only scant evidence in the
record supporting such a classification.
The Department has clarified in the Guidance that to serve as the
basis for a determination that a violation is serious, repeated,
willful, and/or pervasive, the relevant criteria must be readily
ascertainable from the Labor Law decision itself. This means that ALCAs
should not second-guess or re-litigate enforcement actions or the
decisions of reviewing officials, courts, and arbitrators. It also
means that a contractor will not be deemed to have committed a serious,
repeated, willful, or pervasive violation based on a minimal or
arguable showing. While ALCAs and contracting officers may seek
additional information from the enforcement agencies to provide
context, they should rely on only the information contained in the
Labor Law decisions themselves to determine whether violations are
serious, repeated, willful, or pervasive.
Subcontractor Violation Classification
Some of the comments by employer groups voiced additional concern
about the way the Proposed Guidance described the process for a prime
contractor to classify and weigh its subcontractors' Labor Law
violations. These commenters asserted that many prime contractors,
especially small businesses, will not have access to labor law experts
or legal counsel familiar with the intricacies of the fourteen Labor
Laws, and that these prime contractors would not be well-equipped to
evaluate whether violations are serious, repeated, willful, or
pervasive.
The Guidance now contains a separate section addressing
subcontractor responsibility (Section V). The Department addresses
comments related to subcontractor responsibility in a parallel section
of the preamble section-by-section analysis, below.
Scope of Classification Criteria
Many commenters representing employer groups argued that the
criteria for serious, repeated, willful, and pervasive violations were
too broad and
[[Page 58674]]
would encompass too many violations, which would increase the burden of
the Order by subjecting more contractors to scrutiny. These commenters
expressed concern that a prospective contractor would be found
nonresponsible based on, for example, a pair of violations that were
inadvertent but nonetheless met the criteria for repeated violations;
or one or two OSH Act violations that, while meeting the statutory
criteria for serious violations, caused no harm and were addressed
swiftly. Some feared that even a single serious violation would
necessarily lead to a nonresponsibility determination.
The Department believes that this fear is misplaced. Below, in
parts 1 through 4 of this subsection, the Department responds to
commenters' specific concerns regarding the criteria used to classify
violations as serious, repeated, willful, or pervasive. In some cases,
as explained below, the definitions have been narrowed in response to
concerns of over-inclusiveness.
The Department believes the final Guidance appropriately defines
its criteria, given their use in the classification and weighing
process. It is important to note that the classification of a
contractor's violation as serious, repeated, willful, or pervasive does
not mean that the contractor loses an award. Rather, as noted in the
Guidance, one of the purposes of classifying violations as serious,
repeated, willful, and pervasive is to screen out many violations that
may be inadvertent or less likely to have a significant impact. These
classifications limit consideration of a contractor's violations to
those that may merit closer examination. After the initial screening,
ALCAs will conduct a review of these more significant violations,
taking into account the totality of the circumstances, including any
mitigating factors. In this weighing phase, the serious, repeated,
willful, and pervasive classifications provide a useful framework for
analysis and help ensure government-wide consistency. In the final
Guidance, the Department clarifies the description of this process and
has reiterated that classifying a violation as serious, repeated,
willful, or pervasive does not automatically result in a finding that a
contractor lacks integrity and business ethics.
In sum, the Department believes the criteria set forth in the final
Guidance for determining whether violations are serious, repeated,
willful, or pervasive are fair, appropriate, and administrable.
Classification of Violations Involving Retaliation
Some commenters representing employee interests expressed concern
that the definitions of serious, repeated, and willful violations did
not sufficiently account for violations involving retaliation. In
general, it is the intent of the Guidance that violations of the Labor
Laws that involve retaliation must be reported and assessed under the
Order. The Department has made a number of modifications to the
Guidance--discussed further below in the separate sections on serious,
repeated, and willful violations--to ensure that this is the case. As
stated in both the proposed and final Guidance, all violations
involving retaliation are considered serious violations under the
Order.
Effect of Reversal or Vacatur of Basis for Classification
Some commenters expressed concern that under the Proposed Guidance,
a violation could be classified as serious, repeated, willful, and/or
pervasive based on a determination by an agency, arbitrator, or court
that was later reversed, vacated, or otherwise rescinded. For example,
some of these commenters expressed concern that a contractor could be
found to have committed a serious violation based on an OSHA citation
that was originally classified as ``serious'' and later changed to
``other than serious'' or withdrawn entirely.
In response to these comments, the final Guidance clarifies that if
a Labor Law decision or portion thereof that would otherwise cause a
violation to be classified as serious, repeated, willful, and/or
pervasive is reversed or vacated, the violation will not be classified
as such under the Order. Just as a Labor Law decision that is reversed
or vacated in its entirety need not be disclosed, so too, if a Labor
Law decision is modified such that the underlying basis for the
violation's classification as serious, repeated, willful, or pervasive
has been reversed or vacated, the classification no longer applies.
The sections below discuss comments received regarding the criteria
for classifying violations as serious, repeated, willful, or pervasive
and the changes that the Department has made to the Guidance in
response to these comments. In addition to the changes discussed below,
where necessary, the Department has also made conforming changes to the
examples in the four appendices listing examples of the four categories
of violations.
1. Serious Violations
The Proposed Guidance set forth several classification criteria for
determining whether a violation is serious under the Order. As an
initial matter, some commenters indicated that the Proposed Guidance
was unclear as to whether a violation needs to meet only one of the
listed criteria in order to be considered serious. The Department
believes that the Proposed Guidance was clear on this point in that it
stated that a Labor Law violation that meets ``at least one'' of the
listed classification criteria for seriousness will be considered a
serious violation. To provide additional clarity, the final Guidance
states that a violation involving ``any one'' of the listed criteria
will be classified as serious. The Guidance also further clarifies that
separate criteria apply to OSH Act violations enforced through
citations, as discussed in the section below.
a. OSH Act and OSHA-Approved State Plan Violations Enforced Through
Citations and Equivalent State Documents (Formerly ``OSH Act'')
In the Proposed Guidance, the Department stated that a violation is
serious under the Order if OSHA or an OSHA-approved State Plan issued a
citation that it designated as serious, issued a notice of failure to
abate, or issued an imminent danger notice. The Proposed Guidance also
listed several criteria under which violations of any of the Labor Laws
can be classified as serious. The Department received several comments
regarding the classification of violations under the OSH Act and OSHA-
approved State Plans.
Classification of Non-Citation OSHA Violations
Several commenters requested clarification about the classification
of OSH Act and OSHA-approved State Plan violations that are not
enforced through citations--such as retaliation, false-statement
violations, notices of failure to abate, and imminent danger notices
(``non-citation OSHA violations''). These commenters noted that such
violations are enforced not through citations but through notices or
through complaints filed in court. Thus, for these violations, OSHA and
State Plan agencies never make a designation of ``serious,'' as they do
with OSH Act and State Plan violations enforced by citation (``citation
OSHA violations''). These commenters suggested that the Guidance should
be clarified to ensure that non-citation OSHA violations may still be
classified as serious under the Order.
The Department agrees that non-citation OSHA violations may still
be classified as serious under the Order. The final Guidance therefore
clarifies the treatment of OSH Act violations by
[[Page 58675]]
dividing serious violations into two categories. The first consists of
citation OSHA violations, while the second consists of all other
violations of the Labor Laws. This second category includes all non-
citation OSHA violations, as well as violations of the other Labor
Laws. The final Guidance states that a citation OSHA violation is
serious if--and only if--the violation involves a citation or
equivalent State document that was designated as serious or an
equivalent State designation.\55\ Non-citation OSHA violations are
classified as ``serious'' according to the same criteria that are used
to classify violations of the other Labor Laws. For example, if a court
issues a civil judgment finding that a contractor violated the OSH
Act's anti-retaliation provisions by firing a worker in retaliation for
filing a complaint with OSHA, an ALCA should find that this violation
is serious because it meets the retaliation criterion for serious
violation under the Order, as discussed below in section
III(A)(1)(b)(vi) of this section-by-section analysis.\56\
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\55\ Thus, OSH Act and State Plan citations that were designated
by the relevant enforcement agency as other-than-serious cannot be
classified as serious under the Order, even if they satisfy one of
the criteria applicable to other violations of the Labor Laws (such
as violations that affect 25 percent of the workforce).
\56\ As a result of this clarification, notices of failure to
abate a violation and imminent danger notices, which are non-
citation OSHA violations, are now discussed below in subsection (v)
of section III(A)(1)(b), ``All other violations of the Labor Laws.''
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Classification of Citation OSHA Violations
With respect to OSH Act and State Plan violations enforced through
citations, the Department received several comments. Employee advocates
generally supported the Department's proposal to use OSHA or OSHA-
approved State Plan designations of ``serious'' as the basis for
classifying violations as ``serious'' under the Order. In contrast,
industry commenters expressed concern with this approach. The industry
commenters pointed out that a substantial majority of OSHA violations
were designated as serious.\57\ They argued that while the term
``serious'' may be appropriate in the context of OSH Act enforcement,
the use of the OSH Act's ``serious'' designation for the Order is
inconsistent with the Proposed Guidance's goal of identifying those
violations that are ``most concerning and bear on an assessment of a
contractor's or subcontractor's integrity and business ethics.'' Some
of the industry commenters noted that serious violations under the OSH
Act may in some cases include what they characterized as ``technical
violations'' of certain standards.
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\57\ In 2015, approximately 74 percent of OSHA violations were
designated as serious. This data is available on OSHA's Web site at
https://www.osha.gov/dep/2015_enforcement_summary.html.
---------------------------------------------------------------------------
While the Department recognizes these commenters' concerns, the
final Guidance retains this aspect of the definition of serious
violations. The Order requires that the Department's Guidance ``shall .
. . where available, incorporate existing statutory standards for
assessing whether a violation is serious, repeated, or willful.''
Order, section 4(b)(i)(A). The OSH Act is alone among the Labor Laws
identified in the Order in that it contains an explicit statutory
standard for assessing whether a violation is serious. See 29 U.S.C.
666(k) (stating that a violation is serious ``if there is a substantial
probability that [the hazard created by the violation could result in]
death or serious physical harm . . . unless the employer did not, and
could not with the exercise of reasonable diligence, know'' of the
existence of the violation). This standard reflects a congressional
determination that OSH Act violations that meet the above definition
are serious and should be evaluated and enforced accordingly. Moreover,
this standard underscores the severe consequences that can result from
such violations, regardless of their relative prevalence.
Accordingly, the Guidance's definition explicitly incorporates the
OSH Act's definition of a serious violation, as contemplated by the
Order. The Guidance retains the approach under which ALCAs will
classify as ``serious'' under the Order any citation that the relevant
enforcement agency designated as serious. As noted above, the
classification of a violation as serious under the Order does not mean
that the contractor will not receive an award. Rather, the purpose of
classifying certain violations as serious is to limit the scope of
violations that will be considered by an ALCA to those that merit
closer examination. Moreover, in the second step of the assessment
process, ALCAs will review all mitigating factors provided by the
contractor, including whether a violation has been remediated.
b. All Other Violations of the Labor Laws
The Proposed Guidance listed several other criteria that, if met,
would result in the classification of a violation as serious. As noted
above, under the final Guidance, these criteria apply to all violations
except OSH Act and OSHA-approved State Plan violations that are
enforced through citations and equivalent State documents. Comments on
each of these classification criteria are addressed in turn below.
i. Violation Affects at Least 10 Workers Making up at Least 25 Percent
of the Contractor's Workforce at the Worksite or Overall (Formerly
``25% of the Workforce Affected'')
The Proposed Guidance stated that a Labor Law violation is serious
if the affected workers made up 25 percent or more of the workforce at
the worksite. Consistent with the Order's direction, the Department
believes that violations impacting a significant number of employees
are serious. The Department specifically sought comments on this
classification criterion.
Some unions and employee-advocacy organizations argued that this
threshold may exclude violations that affect significant numbers of
people--such as a violation that affects all of the workers in a
particular job category--but do not reach the 25 percent threshold.
Some groups advocated for a lower threshold such as 5 percent, while
others argued that additional thresholds should be added, such as
deeming a violation serious if it affects at least a certain number of
employees (e.g., at least 50 employees). Some of these groups also
argued that a violation should be serious if it affects at least 25
percent of a contractor's overall workforce--in addition to the
worksite-specific threshold.
In contrast, some employer groups argued that the 25 percent
threshold is too low and will be over-inclusive. Some asserted that
certain types of violations, such as an employer's failure to post
required employee-rights notices or establishment of general workplace
policies that are found to violate the law but whose consequences may
not be readily apparent, should not qualify as serious. Some of these
commenters proposed eliminating the 25 percent criterion, raising the
threshold, tailoring it to each Labor Law, or permitting it to be
waived under appropriate circumstances. Some recommended that this
threshold, if it remains in the Guidance, apply only to employers with
at least a specified minimum number of employees to avoid situations in
which the threshold is triggered by a very small number of affected
workers.
Additionally, some commenters requested that the Department clarify
how the 25 percent threshold would apply to violations spanning
multiple worksites. Two of these commenters criticized the Department's
definition of
[[Page 58676]]
the term ``worksite,'' suggesting that it was ambiguous when compared
with the regulatory definition under the Worker Adjustment and
Retraining Notification (WARN) Act, 29 U.S.C. 2101-2109. See 20 CFR
639.3. Two commenters requested the Department clarify how the 25
percent threshold would apply to construction contractors. One proposed
that the Guidance state that ``a violation is serious if it affects 25
[percent] of the workforce of the particular contractor or
subcontractor, working at a specific construction site.'' Another noted
that in the construction industry the number of workers at a worksite
often varies, so it would be difficult to determine the total number of
workers for this analysis.
After careful consideration of all these comments, the Department
retains the 25 percent threshold for this criterion in the final
Guidance, though with some modifications. The Order explicitly directs
the Department to take into account ``the number of employees
affected'' in determining whether a violation is serious. Order,
section 4(b)(i)(B)(1). Accordingly, the Department considers a
violation affecting numerous employees to be serious, even if it may
not result in significant back wages or penalties or place workers in
danger of immediate harm. This includes precisely the types of
violations identified by industry commenters. Failing to post a legally
required notice, for example, is serious because it deprives employees
of knowledge of their rights under the Labor Laws, which could result
in violations not being detected. The Department believes that the
threshold is appropriate.
In response to the commenters' concerns, however, the Department
has modified the 25 percent threshold so it applies only when the
violation affects at least 10 workers. This change avoids triggering
the 25 percent threshold when only a few workers are affected. The
Department declines to set a higher minimum number of workers because
it believes that violations affecting a significant percentage of a
workforce are serious even if the overall size of a workforce is small.
For example, if a small business that employs only 40 employees commits
a violation that affects 15 of those employees, such a violation should
be considered serious even though the overall number of affected
employees is relatively low.
The Department has also added an example to the Guidance to help
clarify how this criterion applies to worksites with multiple
employers. The Proposed Guidance stated that for purposes of
calculating the 25 percent threshold, the number of workers at the
worksite
does not include workers of another entity, unless the underlying
violation of the Labor Laws includes a finding that the contractor
or subcontractor is a joint employer of the workers that the other
entity employs at the worksite.
80 FR 30583. The final Guidance now explains that if a contractor
employs 40 workers at a worksite, then a violation is serious if it
affects at least 10 of the contractor's workers at the site, even if
other companies also employ an additional 40 workers at the same site.
The Department declines to replace the 25 percent threshold
entirely with a threshold based on an absolute minimum number of
workers. Such a threshold would disproportionately affect larger
employers. The Department also declines to adopt a criterion based on a
violation's effect on all employees in a particular job classification.
Such a criterion would not be easily administrable because it would
frequently require ALCAs to perform the difficult task of
distinguishing between job classifications.
The Department also declines to lower the threshold of affected
workers from 25 percent. While any threshold will necessarily include
some violations and exclude others, the Department believes that 25
percent is an appropriate benchmark for determining whether a violation
affects a sufficient number of workers to be considered serious--
therefore warranting further review. While recognizing the concerns of
employee advocates that certain violations may fall short of the
threshold, the Department notes that these violations may meet other
criteria for seriousness. The Department also recognizes the concerns
of employer groups that the 25 percent threshold is overinclusive, but
the Department believes that these concerns will be addressed by the
overall assessment of a contractor's violations, and particularly the
assessment of mitigating factors.
The Department declines to make other changes to the definition of
``worksite.'' The Department notes that the definition in the Guidance
is already similar to the definition of ``single site of employment''
under WARN Act regulations. Both definitions provide that: (1) A
worksite can be a single building or a group of buildings in one campus
or office park, but that separate buildings that are not in close
proximity are generally separate worksites; and (2) for workers who do
not have a fixed worksite, their worksite is the site to which they are
assigned as their home base, from which their work is assigned, or to
which they report. See 20 CFR 639.3(i). These similarities support the
Department's conclusion that the definition of ``worksite'' in the
Guidance is appropriate.
With regard to construction workers specifically, the Department
anticipates that construction workers who regularly work at multiple
sites will in most cases fall into the latter category described above;
namely, their worksite will be the site to which they are assigned as
their home base, from which their work is assigned, or to which they
report. The FMLA's implementing regulations, which adopt a similar
definition of worksite, provide helpful examples for determining the
number of workers at construction worksites. See 29 CFR 825.111(a)(2).
The Department agrees with the commenters who suggested that a
violation should be serious if it affects at least 25 percent of a
contractor's overall workforce (provided that it affects at least 10
workers). The final Guidance has been modified accordingly. In
practice, in the vast majority of cases (if not all cases) in which a
violation affects at least 25 percent of a contractor's overall
workforce, it will also affect at least 25 percent of the contractor's
workforce at a particular worksite; however, this criterion has been
added to ensure coverage of violations that are not specific to a
particular worksite.
ii. Fines, Penalties, and Back Wages (Formerly ``Fines, Penalties, Back
Wages, and Injunctive Relief'')
The Proposed Guidance stated that a violation would be serious if
fines and penalties of at least $5,000 were assessed, back wages of at
least $10,000 were due, or injunctive relief was imposed by an
enforcement agency or a court.
Threshold Amounts
Numerous commenters addressed the proposed $5,000 and $10,000
thresholds. These commenters were divided as to whether the thresholds
were too high or too low. Industry commenters advocated raising these
amounts. In particular, they argued that the $10,000 back-wage
threshold is overbroad and would encompass too many violations. A few
of these commenters addressed the fine-and-penalty thresholds and urged
the Department to base them on the amount collected rather than
assessed. One commenter suggested that the back wage threshold should
be tied to the size of the contractor. Another organization argued that
such a standard is overbroad
[[Page 58677]]
as it applies to violations of anti-discrimination Labor Laws. This
commenter asserted that the monetary thresholds under this criterion
would disproportionately classify discrimination violations as serious
when compared, for instance, to wage-and-hour violations. Another
commenter similarly asserted that most actions under Title VII, the
ADA, the ADEA, and the NLRA seeking backpay would trigger a finding of
a serious violation using a $10,000 threshold.
In contrast, many employee-advocacy and union commenters asserted
that the $10,000 back-wage threshold is too high and would not capture
violations affecting low-wage workers. Several requested clarification
regarding whether the back-wage threshold could be satisfied by adding
together the back wages due to multiple employees in the same matter.
Three of these commenters proposed, as an alternative or additional
metric, that a violation be characterized as serious when the amount of
back wages due is equal to ten percent or more of wages paid the worker
annually. Some commenters also suggested that the Department define a
violation as serious any time that fees are awarded or penalties are
assessed for wage-and-hour violations.
After carefully reviewing all of these comments, the Department
retains the $5,000 and $10,000 thresholds in the final Guidance. The
Order explicitly instructs the Department to take into account ``the
amount of damages incurred or fines or penalties assessed with regard
to the violation.'' Order, section 4(b)(i)(B)(1).
While violations of some Labor Laws may satisfy the monetary
thresholds more often than others, the Department concludes that
creating statute-specific thresholds would not further the goals of the
Order. First, even if discrimination violations are more likely than
wage-and-hour law violations to result in back-wage awards of greater
than $10,000, in both cases an employer has wrongfully denied
employee(s) $10,000 in wages.\58\ In terms of the economic impact on
the workforce, $10,000 in lost wages due to discrimination is just as
serious as $10,000 in lost wages due to a wage-and-hour violation. A
sum of $10,000 is over 18 percent of the median household income in the
United States, and over 31 percent of the median nonfamily household
income.\59\
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\58\ The Department has removed one paragraph from the Guidance
relating to statistics on the WHD administrative merits
determinations that would meet the $10,000 and $5,000 thresholds.
This modification is intended to eliminate extraneous information
from the final Guidance and does not indicate any substantive change
in its application.
\59\ See U.S. Census Bureau, ``Income, Poverty and Health
Insurance Coverage in the U.S.: 2015,'' http://www.census.gov/newsroom/press-releases/2015/cb15-157.html (Sept. 16, 2015).
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Second, as described above, classifying violations as serious,
repeated, willful, and pervasive aims to screen out Labor Law
violations that are less significant for purposes of the Order and to
focus on those violations that are more likely to implicate a
contractor's integrity and business ethics. After this initial
screening, an ALCA then weighs these violations in light of the
totality of the circumstances and any mitigating factors that are
present. Thus, while a single civil judgment awarding $15,000 in back
wages to an employee in a Title VII lawsuit will be classified as
serious under the Order, an ALCA generally should not make a negative
assessment of the contractor's record of Labor Law compliance based on
this violation standing alone.
It is also noteworthy that, as discussed below, many violations of
the Labor Laws will not implicate these thresholds at all because back
wages and penalties have not, or cannot, be assessed. For example,
reasonable cause determinations by the EEOC cannot implicate these
thresholds because they do not specify an amount of back wages.
Similarly, as discussed below, the $5,000 threshold for fines and
penalties (as opposed to back wages) will only be implicated in
administrative enforcement matters where fines and penalties are
assessed, and not private litigation or arbitration where they are not.
The Department also declines to lower the amounts of the monetary
thresholds under this criterion because it believes the amounts are
appropriate. Some unions and employee advocates appeared to construe
the Proposed Guidance as suggesting that the $10,000 back-wage
threshold applied only on a per-employee basis. The Department
clarifies in the final Guidance that the thresholds are cumulative;
i.e., they can be satisfied by summing the fines and penalties assessed
for all workers affected by the violation or by summing the back wages
due to all affected employees.
Similarly, the Department rejects the proposal to classify as
serious all wage-and-hour violations involving fees or penalties. The
Order instructs the Department to take into account ``the amount'' of
fines or penalties assessed in defining serious violations. Order,
section 4(b)(i)(B(1). Thus, the Order contemplates that the Department
will establish a threshold for fines or penalties assessed for the
purposes of determining whether a violation is serious.
The Department also does not adopt the proposal to use an
alternative criterion for serious violations based on the ratio of back
wages due compared with the affected workers' annual pay. While this
could be an informative metric, this information will generally not be
readily ascertainable from Labor Law decisions. To facilitate efficient
and consistent enforcement of the Order, the Department seeks to ensure
that ALCAs rely only on information that can be easily obtained by
reviewing Labor Law decisions.
However, in response to these and other comments, the Department
has modified the guidance on monetary thresholds in several respects.
First, the Proposed Guidance stated that the threshold amounts are
measured by the amount the enforcement agency ``assessed.'' Many
employer groups argued that this threshold should instead take into
consideration any later reduction in the assessed amount--either where
the enforcement agency unilaterally reduces this amount or where it is
reduced during settlement negotiations. These commenters asserted that
enforcement agencies may initially assess a very high amount or the
statutory maximum as a negotiating tactic with little regard for the
seriousness of the violation. One commenter further argued that the
meaning of ``assessed'' is ambiguous given that some enforcement
agencies, such as the NLRB, typically do not quantify or otherwise
assess monetary amounts in a complaint.
The Department agrees with industry commenters on this point and
has modified the Guidance accordingly. The final Guidance states that
the thresholds are measured by the amount ``due.'' This means that if
an enforcement agency consents to accept a reduced amount of either
back wages or penalties for a violation, it is that lesser amount that
will be used to determine seriousness. As stated in the Proposed
Guidance, a reduced settlement amount may be based on factors other
than the seriousness of a violation. In other circumstances, however,
the reduction may reflect the enforcement agency's judgment that a
lower assessment more appropriately reflects the seriousness of a
particular violation. The Department believes that reliance on the
final agreed-upon amount will avoid confusion because this amount will
likely be the one memorialized in the parties' records. Similarly, if
the amount initially assessed by an enforcement
[[Page 58678]]
agency is later reduced by an adjudicative body--for example, if the
Department files a civil complaint in an FLSA case seeking $15,000 in
back wages but a court awards only $8,000--it is the reduced amount
that is relevant for evaluating seriousness.
Reliance on a lesser amount will not apply if an employer files for
bankruptcy and cannot pay the full amount, or simply refuses to pay
such that the full penalty is never collected. In such cases, the
original assessed amount is the amount due, and therefore should be
used when evaluating seriousness.
The Department has also modified the definition of ``fines and
penalties'' that will implicate the $5,000 threshold. Specifically,
this definition now includes only monetary penalties imposed by an
administrative agency and does not include liquidated damages under the
ADEA or punitive damages under other statutes. This change has been
made both in response to concerns about the scope of the $5,000
threshold and to simplify administration of the Order. As noted in
Guidance, however, liquidated damages under the FLSA are included in
the calculation of back wages because they are compensatory in nature.
For clarity, the Department has also added a paragraph to the
Guidance explaining that if an enforcement agency issues an
administrative merits determination that does not include an amount of
back wages due or fines or penalties assessed--for example, if the
Department files a complaint seeking back wages but does not specify
the amount--then the violation cannot be classified as serious using
this criterion until the amount has been determined.
Finally, one commenter recommended clarifying the Guidance to
address any mitigation of damages from an employee's interim
employment. The commenter argued that employees' earnings from
obtaining interim employment should not be factored into the amount of
total back wages for the purpose of the $10,000 threshold. The
Department declines to modify the Guidance on this point. ALCAs will
use the amount of back wages due set forth in the Labor Law decision,
whether or not that amount reflects an adjustment for mitigation. To
facilitate efficient and consistent enforcement of the Order, the
Department seeks to ensure that ALCAs rely only on information that is
readily ascertainable from Labor Law decisions.
Injunctive Relief
The Proposed Guidance stated that a violation would be classified
as serious if injunctive relief ``was imposed by an enforcement agency,
a court, or an arbitrator or arbitral panel.'' 80 FR at 30584.
In response to the proposal, some industry groups commented that
the imposition of injunctive relief alone should not justify
classifying a violation as serious. In their view, injunctive relief is
often imposed regardless of the nature or severity of the violation,
and as a result, they expressed concern that this criterion would
capture minor or technical violations. For example, these commenters
noted that the NLRB always or almost always imposes injunctive relief,
including requiring the employer to post a notice that it has been
found in violation of the NLRA. These commenters suggested that this
criterion should be eliminated or modified to include additional
criteria justifying the conclusion that the violation was serious. In
contrast, commenters representing workers agreed with the Proposed
Guidance that the imposition of injunctive relief warrants
characterizing the violation as serious, given that such relief is
rarely imposed by courts.
After the consideration of the above comments, the Department has
removed injunctive relief from the list of criteria used to classify
violations as serious in the final Guidance. The Department agrees that
including all injunctions entered by courts, arbitrators, and
enforcement agencies as serious may include violations that do not
necessarily bear on a contractor's integrity and business ethics.
However, the Department believes that the imposition of injunctive
relief by courts could be relevant to the ALCA's ultimate assessment of
a contractor's record of Labor Law compliance. Courts issue injunctions
only in rare circumstances.\60\ A preliminary injunction--an injunction
entered before a final judgment--is an ``extraordinary remedy.'' Winter
v. Natural Res. Def. Council, 555 U.S. 7, 22, 24 (2008). Specifically,
---------------------------------------------------------------------------
\60\ For example, as an article cited by one commenter noted,
studies have found that courts issue injunctions in less than 3
percent of Federal employment discrimination cases. See Mark D.
Gough, ``The High Costs of an Inexpensive Forum: An Empirical
Analysis of Employment Discrimination Claims Heard in Arbitration
and Civil Litigation,'' 35 Berkeley J. Emp. & Lab. L. 91, 105 n.62
(2015).
[a] plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in
---------------------------------------------------------------------------
the public interest.
Id. at 20. Thus, in cases involving the enforcement of the Labor
Laws, preliminary injunctions will be issued only when a court has
concluded that the employer has likely violated one of the Labor Laws
and that such conduct threatens to irreparably harm workers and the
public interest. A permanent injunction--one issued at the end of
litigation--requires essentially the same showing, except that the
plaintiff must show actual success on the merits rather than a
likelihood of success. See Amoco Prod. Co. v. Vill. of Gambell, AK, 480
U.S. 531, 546 n.12 (1987).
Because both preliminary and permanent injunctions imposed by
courts are rare and require a showing of compelling circumstances,
including irreparable harm to workers and a threat to the public
interest, the Department believes that if a contractor has already been
found to have committed serious, repeated, willful, and/or pervasive
violations, ALCAs should examine whether any of those violations
resulted in the imposition of injunctive relief by a court. The
Department has therefore moved the discussion of injunctive relief into
the ``weighing'' section of the Guidance: ``Factors that weigh against
a satisfactory record of Labor Law compliance.'' See Guidance, section
III(B)(2). Thus, the imposition of injunctive relief alone will not
result in a violation being classified as serious. However, if a
violation has already been classified as serious, repeated, willful,
and/or pervasive, the imposition of injunctive relief for such a
violation will weigh against a finding that the contractor is
responsible.
iii. Any Violations That Cause or Contribute to Death or Serious Injury
(Formerly ``MSPA or Child Labor Violations That Cause or Contribute to
Death or Serious Injury'')
Under the Proposed Guidance, any violation of MSPA or the FLSA
child labor provisions that causes or contributes to the death or
serious injury of one or more workers is a serious violation.
Several employee advocacy organizations suggested that a violation
of any Labor Law, not just MSPA or the FLSA, should be serious when the
violation causes or contributes to the death or serious injury of a
worker. Many also requested that physical assault--whether or not it
results in death or a serious injury--be considered a serious
violation. They argued that any physical assault was inherently severe
and so should be deemed serious. Similarly, some commenters suggested
that any violation involving sexual
[[Page 58679]]
harassment should be deemed a serious violation.
The Department adopts the first of these proposals but not the
latter two. The Proposed Guidance limited this criterion to MSPA and
the FLSA child-labor provisions because, other than the OSH Act and
State Plans, violations of MSPA's health-and-safety provisions and the
FLSA's child-labor provisions are most likely to have the potential to
result in death or serious injury.\61\ However, in the less likely
event that a violation of one of the remaining Labor Laws causes or
contributes to death or serious injury, the Department agrees that the
violation would be serious. The Department therefore adopts this change
in the final Guidance. As a related matter, the final Guidance also
modifies the definition of ``serious injury'' for purposes of this
criterion; rather than incorporating by reference the meaning of
``serious injury'' from the FLSA's child labor provisions, the Guidance
explicitly defines ``serious injury'' as an injury that requires the
care of a medical professional beyond first-aid treatment or results in
more than five days of missed work.
---------------------------------------------------------------------------
\61\ The Proposed Guidance did not reference the OSH Act or
OHSA-approved State Plans here because any violation of the OSH Act
or OSHA-approved State Plans involving a risk of death or serious
injury will be enforced with a citation designated as serious and
thus will already be a serious violation under the Order. This
criterion is intended to capture violations of other Labor Laws that
result in death or serious injury.
---------------------------------------------------------------------------
The Department does not adopt the suggestions regarding physical
assault or sexual harassment. While the Department agrees that many
violations involving physical assault or sexual harassment are serious,
the Department declines to broaden this criterion because these terms
can also include more minor workplace altercations or interactions.
iv. Employment of Minors Who Are Too Young To Be Legally Employed or in
Violation of a Hazardous Occupations Order
The Department did not receive comments directly addressing this
criterion. The Department retains the Guidance as proposed.
v. Notices of Failure To Abate and Imminent Danger Notices
The Proposed Guidance stated that a violation is serious under the
Order if it involves a notice of failure to abate an OSH Act violation
or an imminent danger notice under the OSH Act or an OSHA-approved
State Plan. The Department did not receive comments specifically
addressing these criteria, with the exception of the comments described
above requesting that the Department clarify that non-citation OSHA
violations such as these are serious under the Order despite not having
being designated as ``serious'' by the relevant enforcement agency.
As noted above, the Department has clarified this matter in the
final Guidance by dividing OSH Act and OSHA-approved State Plan
violations into two categories: Citation OSHA violations, which are
serious if, and only if, they were designated as such by the relevant
enforcement agency; and Non-Citation OSHA Violations, which are serious
if they meet other criteria listed in the Guidance. Because notices of
failure to abate and imminent danger notices fall into the second
category, the final Guidance lists them separately from citation OSHA
violations. The final Guidance also clarifies that notices of failure
to abate State Plan violations (as well as any State equivalents of
notices of failure to abate or imminent danger notices) are serious
violations because failing to correct a hazard after receiving formal
notification of the need to do so represents a serious disregard for
the law.
vi. Retaliation (Formerly ``Adverse Employment Actions or Unlawful
Harassment for Exercising Rights Under Labor Laws'')
The Proposed Guidance classified violations involving ``adverse
employment actions or unlawful harassment for exercising rights under
Labor Laws,'' i.e., retaliation, as serious. The Department defined
``adverse employment actions'' to include discharge, refusal to hire,
suspension, demotion, or threats.
A number of commenters expressed general support for the inclusion
of retaliation within the definition of a serious violation. Some
supportive commenters were concerned, however, that the Department had
limited ``adverse employment action'' to only the five types of adverse
action explicitly listed in the Proposed Guidance. These commenters
urged the Department to adopt instead the Supreme Court's definition of
adverse employment action in Burlington Northern & Santa Fe Railway
Company v. White, 548 U.S. 53 (2006). Under Burlington Northern, to
prove retaliation under Title VII, a plaintiff ``must show that a
reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.'' Id. at 68 (internal citations and quotation marks
omitted). While this definition does not include ``petty slights, minor
annoyances, and simple lack of good manners,'' it does include
constructive discharges; transfers to undesirable shifts, locations, or
positions; or changes in other terms and conditions of employment, see
id., none of which were specifically listed in the Proposed Guidance.
The Department finds the comments regarding Burlington Northern
persuasive. In particular, it agrees with the AARP comment that
``[r]etaliation that could deter a reasonable worker from exercising a
protected right [under the Labor Laws] is per se serious.'' The
Department concludes that Burlington Northern provides a useful
standard for what constitutes an adverse action sufficient to support a
finding of retaliation, and modifies the Guidance to adopt it. The
Department further notes that the list of examples of adverse actions
in the Guidance is not meant to be exclusive.
In contrast to the generally supportive comments about this
criterion from employee-advocacy groups, several employer groups
opposed the classification of violations involving retaliation as
serious. These industry commenters argued that many allegations of
discrimination include accusations of retaliation as a matter of
course, and that many large employers will have one or more such
allegations pending at any given time.
The Department retains retaliation as a classification criterion
for serious violations. As noted in the Proposed Guidance, retaliation
is serious because it dissuades workers from reporting violations and
therefore may mask other serious conduct by employers. In response to
concerns that retaliation allegations may be included in discrimination
complaints as a matter of course, the Department reiterates that a
private complaint is not disclosable as a Labor Law decision under the
Order unless and until it leads to an administrative merits
determination, a civil judgment, and or an arbitral award or decision.
A complaint alone must be disclosed only if it has been filed by an
enforcement agency following an investigation, and therefore
constitutes an administrative merits determination. In sum, the
Department believes that retaliation is serious, and the final Guidance
retains this criterion.
While retaining the criterion, the Department modifies it for
clarity. Two industry commenters suggested that the language in the
Proposed Guidance could have allowed a finding that an ``adverse
employment action'' alone is a serious violation under the Order--
regardless of whether it was taken in
[[Page 58680]]
retaliation for protected activity. That was not the Department's
intent. Rather, an adverse employment action only becomes relevant to
this criterion when it is taken in retaliation for a worker exercising
a right protected by any of the Labor Laws. To clarify the Guidance,
the Department has changed the title of this criterion to
``retaliation'' and has adjusted the wording of the description
accordingly.\62\
---------------------------------------------------------------------------
\62\ Similarly, the Business Roundtable commented on one of the
Proposed Guidance's examples of retaliatory behavior that referenced
an employee who is disciplined for making a complaint about
potential violations of Labor Laws. The Business Roundtable
expressed concern that any employee complaint could be deemed a
serious violation. However, the Proposed Guidance did not suggest
that the employee's complaint itself could be considered a serious
violation; rather, the relevant serious violation would be where an
administrative merits determination, civil judgment, or arbitral
award or decision finds that the employer retaliated against the
employee for making the complaint.
---------------------------------------------------------------------------
One commenter expressed concern about the NLRA example of a serious
violation in Appendix A, which describes a contractor that fired the
employee who was the lead union adherent during the union's organizing
campaign. The commenter noted that such behavior would only be unlawful
if the discharge was in retaliation for the employee's protected
activity. The Department agrees with the commenter and modifies the
example in the Appendix A of the final Guidance to clarify this point.
vii. Pattern or Practice of Discrimination or Systemic Discrimination
The Proposed Guidance stated that violations involving a ``pattern
or practice of discrimination or systemic discrimination'' are serious.
Specifically, the Proposed Guidance defined a pattern or practice of
discrimination as involving ``intentional discrimination against a
protected group of employees, rather than discrimination that occurs in
an isolated fashion.'' 80 FR 30585. Systemic discrimination involves
``a pattern or practice, policy, or class case where the discrimination
has a broad impact on an industry, profession, company or geographic
area.'' Id. Systemic discrimination also includes ``policies and
practices that are seemingly neutral but may cause a disparate impact
on protected groups.'' Id.
Several employee-advocacy commenters argued that the Guidance
should explicitly state that systemic discrimination is not limited to
class actions or government agency enforcement, so that individual or
multi-plaintiff lawsuits challenging a widely-applicable practice or
rule should fall within the definition of serious. Because the
definition in the Proposed Guidance singled out ``class cases,'' these
commenters believed that one could infer that the Guidance excludes
individual or multi-plaintiff non-class action cases in which the Labor
Law decision includes a finding that systemic discrimination occurred.
The Department agrees that systemic discrimination is not limited to
litigation brought in a class action, and has clarified this point in
the final Guidance.
Several of these commenters also advocated that this criterion for
serious violations should not be limited to ``systemic
discrimination,'' but instead should include all ``systemic labor law''
violations. Commenters cited the misclassification of employees as
independent contractors and the failure to provide adequate safety
equipment to an entire workforce as systemic violations involving
company-wide policies that should be deemed serious.
The Department declines to expand the definition of systemic
discrimination. The term ``systemic discrimination'' has a well-
established meaning under anti-discrimination laws, and the Department
intended to restrict this criterion to such violations. Moreover, the
Department expects that many widespread violations unrelated to
discrimination will likely be classified as serious under other
criteria in the Guidance.
Finally, one industry commenter criticized the systemic
discrimination criterion, asserting that it was too broad because
virtually all of OFCCP's discrimination allegations are ``pattern or
practice'' or systemic allegations. The Department disagrees. While
OFCCP does focus on this category of discrimination, only a small
fraction of OFCCP's show-cause notices include a finding that systemic
discrimination has occurred. Additionally, as noted earlier, OFCCP
issues fewer than 200 show-cause notices per year; thus, the overall
number of OFCCP cases implicated by this criterion is not large. In the
Department's view, systemic or pattern-or-practice discrimination
remains an appropriate criterion for determining whether a violation is
serious.
While the Department has not made any substantive changes to the
definitions for this criterion, the Department has added a list of the
Labor Laws to which this criterion will generally apply, as well as a
reference to a leading Supreme Court case defining ``pattern or
practice,'' International Brotherhood of Teamsters v. United States,
431 U.S. 324, 336 (1977).
viii. Interference With Investigations
The Proposed Guidance stated that a Labor Law violation is serious
if the Labor Law decision's findings support a conclusion that the
contractor interfered with an enforcement agency's investigation. The
Proposed Guidance also listed several examples of interference.
Several industry commenters voiced concern about this category.
Specifically, these commenters argued that this category could penalize
contractors for raising good-faith challenges to the scope of an
agency's investigation. For example, commenters stated that a
contractor may refuse to provide documents to an agency because it
takes the position that the agency's request is overbroad. Some of
these commenters argued that the contractor has a right to challenge
the scope of a subpoena, document request, or request for information,
and that the assertion of such rights should not be construed as
interference--regardless of whether a court ultimately decides in favor
of the contractor. One commenter suggested that such disputes should be
distinguished from more serious obstruction such as threatening workers
who speak to enforcement agency investigators, falsifying or destroying
records, or making misrepresentations to investigators.
After careful consideration of the comments received, the
Department is retaining this criterion for serious violations in the
final Guidance but is limiting its scope. The Department views
interference with investigations as serious because such behavior
severely hinders enforcement agencies' ability to conduct
investigations and correct violations of law. The Department also
recognizes, however, that employers may have good-faith disputes with
agencies about the scope or propriety of a request for documents or
access to the worksite.
Accordingly, the Department has narrowed the ``interference''
criterion such that interference is defined to include only the
following circumstances:
(1) A civil judgment was issued holding the contractor in contempt
for failing to provide information or physical access to an enforcement
agency in the course of an investigation; or
(2) It is readily ascertainable from the Labor Law decision that
the contractor--
(a) Falsified, knowingly made a false statement in, or destroyed
records to frustrate an investigation under the Labor Laws;
[[Page 58681]]
(b) Knowingly made false representations to an investigator; or
(c) Took or threatened to take adverse actions against workers (for
example, termination, reduction in salary or benefits, or referral to
immigration or criminal authorities) for cooperating with or speaking
to government investigators or for otherwise complying with an agency's
investigation (for example, threatening workers if they do not return
back wages received as the result of an investigation).
This revision aims to capture two primary categories, both of which
the Department considers serious: First, instances in which a court not
only concludes that the employer unlawfully withheld documents or
access from an agency, but holds the employer in contempt for doing so;
and second, instances in which an employer takes affirmative steps to
frustrate an investigation.
ix. Material Breaches and Violations of Settlements, Labor Compliance
Agreements, or Orders (Formerly ``Material Breaches and Violations of
Settlements, Agreements, or Orders'')
The Proposed Guidance stated that a violation is serious if it
involves a breach of the material terms of any agreement or settlement,
or a violation of a court or administrative order or arbitral award.
One commenter expressed concern regarding this criterion, stating that
the Guidance did not clearly explain how to determine that a settlement
agreement had been materially breached.
The Department retains this criterion for serious violations in the
Guidance, with a clarification. The concept of material breach is well-
established in law. See, e.g., Frank Felix Associates, Ltd. v. Austin
Drugs, Inc., 111 F.3d 284, 289 (2d Cir. 1997) (stating that a material
breach, under New York law, is one that ``go[es] to the root of the
agreement between the parties''). The Department believes that in most
cases, the existence of a material breach will be clear. For example,
if an employer agrees in a settlement to classify certain types of
workers as employees, but continues to classify them as independent
contractors, this will constitute a material breach. The intent of this
provision is not to capture technical or questionable breaches; rather,
it is to capture those cases in which an employer agrees, as part of a
settlement, to take certain steps to remedy Labor Law violations but
then fails to do so. The Department also clarifies the relevant
``agreements'' whose material breach will constitute a serious
violation. The term ``agreements'' includes settlements and labor
compliance agreements.
c. Table of Examples
The Department has updated the table of examples to reflect the
changes in the final Guidance.
d. Other Comments on Serious Violations
The National Women's Law Center suggested that the Guidance should
include a separate subcategory of serious violations that captures
``the scope and severity of harm caused by a violation,'' such as
violations that implicate more than one right under the Labor Laws,
severe monetary losses, or other types of severe losses.
The Department agrees that the Guidance should capture the scope
and severity of harm caused by a violation, but does not believe it is
necessary to create an additional criterion or separate subcategory of
serious violations. The existing criteria for serious violations
generally seek to capture the scope and severity of harm, by focusing
on, for example, the degree of monetary harm, the number of affected
workers, and the extent to which a violation risked or caused death or
serious injury. In addition, scope and severity of harm are taken into
consideration during the process by which ALCAs weigh a contractor's
overall record of Labor Law compliance. As discussed below, in
analyzing a contractor's record during the weighing process, an ALCA
does not need to give equal weight to two violations that receive the
same classification. Some violations may have more significant
consequences on a contractor's workforce than others, and therefore
will be given more weight during the determination of whether a
contractor has a satisfactory record of Labor Law compliance. See
Guidance, section III (B).
Several industry commenters expressed concern that a contractor
could be found to have committed a serious violation based on a novel
legal theory asserted by an agency or upheld for the first time by a
court. These commenters cited, for example, recent NLRB complaints
challenging employee handbooks and corporate social media policies and
EEOC reasonable cause determinations challenging employer background
check policies.
The Department declines to adopt a per se rule under which
violations based on a novel legal theory would not be deemed serious.
Many cases call for the application of established legal rules to new
circumstances, and the fact that no identical violation has been
previously prosecuted is not relevant to the measure of the violation's
effect on the contractor's workers. If a contractor believes that a
violation should carry less weight because it was based on a novel
legal theory, the contractor should make such arguments when submitting
mitigating information about the violation. The Guidance provides that
a recent legal or regulatory change may be a factor weighing in favor
of a satisfactory record of Labor Law compliance. This may be the case
where ``prior agency or court decisions suggested that a practice was
lawful, but the Labor Law decision finds otherwise.'' Guidance, section
III (B)(1)(e).
One labor union commenter urged that an NLRA ``hallmark violation''
should be treated as a serious violation, and that more than one
hallmark violation should be considered pervasive. Hallmark violations
include certain violations that are particularly coercive, including
``threats of plant closure or loss of employment, discharge or other
serious adverse action against union adherents, and grants of
significant benefits to employees.'' Regency Manor Nursing Home, 275
NLRB 1261, 1262 (N.L.R.B. 1985).
The Department declines to modify the definitions of serious and
pervasive violations to include a new criterion of NLRA hallmark
violations. Unlike, for example, OSHA, which clearly designates
citations as ``serious'' on the face of the citation, the General
Counsel of the NLRB does not characterize violations as ``hallmark'' in
a complaint. Thus, the ALCA would have to make a determination
regarding whether a violation is a hallmark one, and the Department
does not envision ALCAs having such a role. Nevertheless, the
Department notes that many hallmark violations would likely be
considered serious under one of the existing criteria, such as the
criteria on retaliation and violations that affect at least 10 workers
comprising 25 percent of a contractor's workforce.
Similarly, another labor union commenter suggested that the
Guidance add a criterion addressing corporate policies that
significantly chill employees' rights to speak out, organize, or file
complaints. The commenter specifically suggested that multiple policies
aimed at silencing workers should be considered serious. The Department
declines to adopt this suggestion. When a contractor is found to have
maintained such an unlawful, corporate policy governing employee
conduct, such a policy will likely affect at least 25 percent of the
employer's workforce and will be classified as
[[Page 58682]]
serious on that basis. As noted above, the criterion setting out the 25
percent threshold is meant to capture violations to the extent that
they affect a sufficient number of employees. Accordingly, the
Department believes that an additional category of serious violations
that captures only certain types of corporate policies is unnecessary.
2. Repeated Violations
The Order provides that the standard for repeated violations should
``incorporate existing statutory standards'' to the extent such
standards exist. Order, section 4(b)(i)(A). The Order further provides
that, where no statutory standards exist, the standards for repeated
should take into account ``whether the entity has had one or more
additional violations of the same or a substantially similar
requirement in the past 3 years.'' Id. section 4(b)(i)(B)(2). None of
the Labor Laws contains an explicit statutory definition of the term
``repeated.'' Accordingly, the Proposed Guidance defined ``repeated''
violations using the ``substantially similar'' language suggested by
the Order. See 80 FR 30587.
The final Guidance generally maintains the Proposed Guidance's
definition of ``repeated'' violations, with some modifications. First,
where the Proposed Guidance included a general definition followed by a
list of examples, the final Guidance instead sets forth a statute-
specific, exhaustive list of repeated violations. This list closely
parallels the examples that were presented in the Proposed Guidance,
with the exception of some changes explained below.
The Department has made several nonsubstantive changes to the
definition for clarity. The Guidance now uniformly refers to the
initial violations that form the basis for a repeated violation as
``prior'' violations, instead of ``predicate'' violations. Where
discussing the relationship between the prior violation and the
repeated violation itself, the Guidance refers to the latter as the
``subsequent violation.'' The Guidance also now refers to the relevant
3-year period for determining if a violation is repeated as the ``3-
year look-back period.'' The Department also has changed the order of
and retitled some of the subsections within the definition, and has
created a separate sub-heading for ``citation OSHA violations.''
Finally, the Department has made a few additional changes to the
definition in response to comments, as discussed below.
a. OSH Act and OSHA-Approved State Plan Violations Enforced Through
Citations or Equivalent State Documents
The Proposed Guidance stated that ``[f]or violations of the OSH
Act, violations are repeated if they involve the same or a
substantially similar hazard.'' 80 FR 30574, 30588.
Employee-advocacy commenters as well as an industry commenter
submitted comments on this criterion. These commenters stated that this
definition seemed to classify some violations as repeated for the
purposes of the Order that would not be considered ``repeat'' under the
OSH Act. The reason is that the enforcement scheme of the OSH Act
includes both OSHA and the OSHA-approved State Plans. Under that
scheme, violations of State Plans are not considered by Federal OSHA
when classifying a Federal violation as ``repeat.'' Similarly, State
Plan agencies typically do not cite an employer for a repeat violation
if the prior violation occurred outside the State's jurisdiction.
The employee advocates supported application of the ``substantially
similar'' standard as proposed in the Guidance, regardless of the
variance from the OSH Act. The industry commenter argued that ALCAs and
contracting officers would not have the expertise to determine that two
violations were substantially similar if the relevant enforcement
agency did not originally designate them as such.
After carefully considering all of the comments received, the
Department has decided to modify the Guidance criterion for repeated
violations under the OSH Act and OSHA-approved State Plans. It was not
the Department's intention to expand the scope of repeated violations
beyond those already deemed ``repeat'' under the OSH Act and OSHA State
Plans. Rather, the Department's reference in the Proposed Guidance to
violations that involve the same or a substantially similar hazard was
solely intended to incorporate the Federal OSH Act's standard for
repeated violations. See Potlatch Corp., 7 O.S.H. Cas. (BNA) 1061, 1063
(O.S.H.R.C. 1979). Therefore, the Guidance now states that an OSH Act
or OSHA-approved State Plan violation that was enforced through a
citation or equivalent State document (a ``citation OSHA violation'')
will only be ``repeated'' under the Order if OSHA or the relevant State
Plan agency originally designated the citation as repeated, repeat, or
any similar State designation.
While modifying the OSHA definition in this way, the Department
retains the 3-year timeframe limitation discussed in the Proposed
Guidance. In making ``repeated'' designations, OSHA's current policy is
to consider whether the employer has violated a substantially similar
requirement any time within the previous 5 years. The Order, however,
indicates that a 3-year look-back period is appropriate. Accordingly,
when a contractor discloses a decision involving an OSH Act
``repeated'' violation, the ALCA will need to review the decision to
determine whether the prior violation occurred in the previous 3 years.
This means that the prior violation must have become a final order of
the OSHRC or equivalent State agency within the previous 3 years. In
sum, only those citations that have been designated as repeated and
where the prior violation occurred in the 3 years preceding the second
citation should be classified as repeated under the Order.
The final Guidance also deletes a statement from the Proposed
Guidance that violations of MSPA and the OSH Act may be substantially
similar if they involve substantially similar hazards. Upon further
consideration, the Department believes that such an approach is not
easily administrable.
For non-citation OSHA violations, neither OSHA nor State Plan
agencies make ``repeated'' designations. Accordingly, the Guidance
clarifies that ALCAs will classify non-citation violations as repeated
using the same general criteria that apply to all other violations. See
Guidance, section III(A)(2)(b).
b. All Other Violations
Under the final Guidance, for all Labor Law violations other than
citation OSHA violations, a violation is ``repeated'' if it is
the same as or substantially similar to a prior violation of the
Labor Laws that was the subject of a separate investigation or
proceeding arising from a separate set of facts, and became
uncontested or adjudicated within the previous 3 years.
Guidance, section III(A)(2). Comments related to this definition
are discussed below.
i. Prior Violation Must Have Been Uncontested or Adjudicated (Formerly
``Type of Violations'')
The Proposed Guidance stated that the prior violation that forms
the basis for a repeated violation must be a civil judgment, arbitral
award or decision, or adjudicated or uncontested administrative merits
determination. Under the Proposed Guidance, this restriction did not
apply to the subsequent violation. In other words,
[[Page 58683]]
the violation classified as repeated did not itself need to be
adjudicated.
Several employer groups challenged this distinction. Most of these
commenters argued that the definition should require both the prior and
subsequent violations to have been adjudicated for the subsequent one
to be classified as repeated. One commenter asserted that limiting the
prior violation to adjudicated or uncontested administrative merits
determinations implicitly recognizes that unadjudicated determinations
are inherently suspect. Many of these comments echoed those made by
employer groups regarding the required disclosure of nonfinal
administrative merits determinations, in which these groups suggested
that only final agency decisions should have to be disclosed under the
Order.
In the final Guidance, the Department generally retains the
proposed framework, though with some modifications discussed below. The
purpose of classifying a violation as repeated is to identify those
employers who fail to modify their conduct after having committed a
previous substantially similar violation. Employers who have repeatedly
violated the law are more likely than other contractors to commit
future similar Labor Law violations during performance of a Federal
contract. Because an ALCA will give a repeated violation additional
scrutiny, it is appropriate to create more limited parameters for the
prior violation by requiring it to have been uncontested or
adjudicated. As the Guidance notes, this framework is intended to
ensure that violations will only be classified as repeated when the
contractor has had the opportunity--even if not exercised--to present
facts or arguments in its defense before an administrative adjudicative
authority concerning the prior violation.
Moreover, the Department chose to require the prior violation to be
uncontested or adjudicated because this formulation is similar to the
one used to designate repeated violations under the OSH Act. In
enforcing the OSH Act, OSHA requires a prior substantially similar
violation to have become a final order of the OSHRC before the
occurrence of the subsequent violation. The subsequent violation
itself, however, need not be a final order of the OSHRC. The Department
has chosen to model the definition of ``repeated'' under the Order
after the OSH Act practice.
While the Department declines to change basic underlying framework,
the final Guidance contains a few minor changes in response to the
comments received and for clarity.
First, for clarity, the final Guidance explains that any Labor Law
decision--not just administrative merits determinations--must be
uncontested or adjudicated to be a prior violation. Since civil
judgments and arbitral awards or decisions are inherently adjudicated
proceedings, this change is nonsubstantive; but it is made to emphasize
that the same basic standard applies to all Labor Law decisions.
Second, in response to concerns of employer commenters, the final
Guidance narrows the definitions of ``uncontested'' and
``adjudicated,'' as follows:
An ``uncontested'' violation is now defined as a violation that is
reflected in:
(1) A Labor Law decision that the employer has not contested or
challenged within the time limit provided in the Labor Law decision or
otherwise required by law; or
(2) A Labor Law decision following which the employer agrees to at
least some of the relief sought by the agency in its enforcement
action.
These changes are made to ensure that a violation will not be
considered uncontested unless it is resolved or any applicable time
period to contest it has expired. Under the Proposed Guidance's
definition, an administrative merits determination would have been
considered uncontested unless a timely appeal of the determination was
filed or pending. This definition, however, did not account for cases
in which a contractor may intend to dispute an agency's determination,
but the burden is on the agency to initiate litigation in order to
continue enforcement, such as in the case of EEOC reasonable cause
determinations or FLSA enforcement proceedings brought by WHD. Under
the revised definition, such violations will not be considered
uncontested.
An ``adjudicated'' violation is now defined as a violation that is
reflected in:
(1) A civil judgment,
(2) an arbitral award or decision, or
(3) an administrative merits determination that constitutes a final
agency order by an administrative adjudicative authority following a
proceeding in which the contractor had an opportunity to present
evidence or arguments on its behalf.
The Guidance explains that ``administrative adjudicative
authority,'' as used in (3) above, means an administrative body
empowered to hear adversary proceedings, such as the ARB, the OSHRC, or
the NLRB. ALJs are also administrative adjudicative authorities;
however, their decisions will only constitute adjudicated violations if
they are adopted as final agency orders. The Guidance notes that this
typically will occur, for example, if the party subject to an adverse
decision by an ALJ does not file a timely appeal to the agency's
administrative appellate body, such as those referenced above. Thus, if
an administrative merits determination is subject to multiple levels of
appellate review, such as proceedings before the Department that go
before an ALJ and then the ARB, only a decision following the final
level of appellate review constitutes an adjudicated administrative
merits determination.
Finally, the Department also modifies the Guidance to clarify that
the prior violation must be uncontested or adjudicated before the date
of the Labor Law decision for the subsequent violation in order for the
subsequent violation to be classified as repeated. The Guidance
includes an example illustrating this point.
ii. 3-Year Look-Back Period (Formerly ``Timeframe'')
The Proposed Guidance stated that the prior violation for a
repeated violation must have occurred within the 3-year ``reporting
period.''
As an initial matter, the Department has recognized that this
characterization did not accurately describe the 3-year timeframe for
considering whether a violation is repeated. The 3-year ``reporting
period'' (which the Guidance now refers to as the ``3-year disclosure
period'') is relevant to the Order's basic requirement of which Labor
Law decisions a contractor must disclose at all--not to the
determination of whether a violation was repeated. This disclosure time
period extends back from the date of the contractor's offer. The
Department, however, interprets section 4(b)(i)(B)(2) of the Order,
which directs the Department to consider ``whether the entity has had
one or more additional violations of the same or a substantially
similar requirement in the past 3 years,'' to refer to a distinct look-
back period for identifying repeated violations--wherein the prior
violation must have occurred no earlier than 3 years prior to the date
of the subsequent violation (not the date of the offer). The Department
has included language clarifying this distinction in the Guidance.\63\
---------------------------------------------------------------------------
\63\ Along the same lines, the Department notes that although,
as noted above, there will be a phase-in of the 3-year disclosure
period, there is no such phase-in for the 3-year look-back period
for classification of repeated violations. Thus, an ALCA may find
that violation was repeated based on the occurrence of a prior
violation even if the Labor Law decision related to the prior
violation was not disclosed by the contractor but was instead
identified by the ALCA using government enforcement databases.
---------------------------------------------------------------------------
[[Page 58684]]
Some employee-advocacy groups argued that a 3-year look-back period
is too short. Two of these groups argued that the look-back period
should be expanded beyond 3 years, stating that because agency
investigations and related litigation often take months or even years,
it will be difficult to identify patterns of repeated violations within
only a 3-year window. These commenters suggested that in the preaward
phase, the contractor should be asked if it committed any similar
violations during the previous 5 years, and in the postaward phase, the
look-back period should be expanded to include all years in which the
contractor held contracts.
The Department declines to modify the Guidance in response to these
suggestions. The 3-year look-back period is explicitly set forth in the
Order and reflects the intention of the President that only violations
during this time period will be considered in determining whether
violations are repeated. See Order, section 4(b)(i)(B)(2). A 5-year
period would be inconsistent with the Order.
In contrast, one industry commenter suggested that the 3-year look-
back period is too long, and would result in the consideration of a
contractor's conduct that may have occurred long before the beginning
of the look-back period. Even if the prior violation itself occurred
within the 3-year look-back period, argued the commenter, the
underlying conduct that led to that prior determination could have
taken place much earlier, especially if the prior violation has a long
litigation history.
As noted earlier in the discussion of disclosure requirements, the
Department recognizes that there will be Labor Law decisions that must
be disclosed under the Order where the underlying conduct occurred
outside the 3-year disclosure period. This is unavoidable in a system
under which violations need not be disclosed until there is an
administrative merits determination, civil judgment, or arbitral award
or decision. The same is true for the separate 3-year look-back period
for repeated violations.
However, the Department understands the commenter's concern that,
under the Proposed Guidance, a violation that is the subject of lengthy
litigation could create a later repeated violation that the Order
clearly did not intend to classify as such. For example, OFCCP could
issue a show cause notice to a contractor on January 1, 2017. The
contractor could contest the violation, resulting in an ALJ
determination on January 1, 2018, an ARB determination on January 1,
2019, a civil judgment by a district court on January 1, 2020, and a
civil judgment by a court of appeals on January 1, 2021. If the
contractor commits a substantially similar violation on December 31,
2023, it would be less than 3 years after the court of appeals
decision. But it would be 6 years after the initial OFCCP show cause
notice was rendered--far outside the 3-year look-back period. The
Department agrees that it would be contrary to the spirit of the Order
to use the 2021 date to determine whether the conduct in 2023 is
``repeated.''
To address this issue, the Department has modified the Guidance in
the following manner: The final Guidance explains that for a violation
to be classified as repeated, the prior violation must have become
uncontested or adjudicated (in other words, first become adjudicated)
no more than 3 years prior to the date of the repeated violation (that
is, the violation that is classified as repeated).
The final Guidance explains that the violation becomes uncontested
either on the date on which any time period to contest the violation
has expired, or on the date of the employer's agreement to at least
some of the relief sought by the agency in its enforcement action
(e.g., the date a settlement agreement is signed). A prior violation
becomes adjudicated on the date on which the violation first becomes an
adjudicated violation. This means that the violation becomes
adjudicated on the date when the violation first becomes a civil
judgment, arbitral award or decision, or a final agency order by an
administrative adjudicative authority following a proceeding in which
the contractor had an opportunity to present evidence or arguments on
its behalf.
Thus, for a violation that is the subject of successive
adjudications such as in the above example, the dates of subsequent
decisions after the first adjudication are not relevant. Accordingly,
in the above example--which is reproduced in the final Guidance--the
relevant date of the prior violation is January 1, 2019, the date of
the ARB order, because this is the date on which the violation becomes
a final agency order by the ARB, and therefore first becomes an
adjudicated violation. It could serve as a prior violation only for a
substantially similar violation decision that is issued after January
1, 2019 and prior to January 1, 2022.\64\ The dates of the subsequent
Federal court decisions are not relevant.
---------------------------------------------------------------------------
\64\ This modification of the guidance on repeated violations
does not, however, affect the contractor's disclosure requirements.
The disclosure requirements for violations that involve successive
Labor Law decisions are discussed in section II(B)(4) of the
Guidance and the preamble section-by-section analysis.
---------------------------------------------------------------------------
iii. Separate Investigations or Proceedings
The Proposed Guidance also stated that ``[t]he prior violation(s)
must be the subject of one or more separate investigations or
proceedings.'' 80 FR 30587. One industry commenter expressed concern
that this requirement could be applied inconsistently in cases where
multiple agencies (e.g., OSHA and WHD) investigate an employer. The
commenter suggested that if both agencies conduct a joint
investigation, then no violations would be repeated, but if the
agencies conduct separate investigations, some of the violations could
be repeated.
The Department agrees that the language in the Proposed Guidance
was ambiguous and modifies the Guidance to address this issue. The
final Guidance clarifies that for violation to be classified as
repeated, it must be based upon a separate set of facts from those
underlying the prior violation. Although the Department does not
foresee a scenario along the lines of the one envisioned by the
commenter (in part because violations investigated by different
agencies are less likely to be substantially similar), the new language
clarifies that this scenario would not give rise to a repeated
violation.
iv. Violation Committed by the Contractor (Formerly ``Company-Wide
Consideration'')
Under the Proposed Guidance, the determination of a repeated
violation takes a company-wide approach; that is, a prior violation by
any establishment of a multi-establishment company can render
subsequent violations repeated, provided the other relevant criteria
are satisfied. Several labor unions and employee-advocacy groups
expressed strong support for this approach. One employer association
expressed opposition to this approach, arguing that large companies
often have disparate components that are managed independently.
Finally, three commenters suggested that the Department clarify the
scope of ``company-wide'' and ``establishment.''
The Department retains this provision in the Guidance and clarifies
that ``company-wide'' includes any
[[Page 58685]]
violations committed by the same legal entity. By using the term
``establishment'' in the phrase ``multi-establishment company,'' the
Guidance simply means a physical location where the contractor
operates, such as an office, factory, or construction worksite. Thus,
for the purposes of determining whether a violation is repeated, prior
violations that occurred at different physical locations will be
considered as long as they were committed by the same legal entity.
This approach is consistent with the Order, which uses the term
``entity'' in its requirement that the Department's definition to take
into account ``whether the entity has had one or more additional
violations of the same or a substantially similar requirement in the
past 3 years.'' Order, section 4(b)(i)(B)(2). This is also consistent
with the manner in which the Federal agencies administering the two
statutory regimes that currently assess ``repeated'' violations--the
FLSA and the OSH Act--evaluate repeated violations. In short, this
principle simply affirms that all violations by a contractor will be
considered in assessing whether the contractor committed repeated
violations.
v. Substantially Similar Violations
The Proposed Guidance provided a definition for how to determine
whether violations are ``substantially similar'' for the purposes of
classifying a later violation as ``repeated.'' The Proposed Guidance
included a general principle and illustrative examples. It stated that
substantially similar does not mean ``exactly the same''; rather, two
things may be substantially similar where they share ``essential
elements in common.'' 80 FR 30574, 30587 (internal citation omitted).
It further noted that ``[w]hether a violation is `substantially
similar' to a past violation turns on the nature of the violation and
underlying obligation itself.'' Id. The Proposed Guidance then provided
examples of how this general principle applies in the context of the
various Labor Laws. The Department specifically sought comment
regarding this definition.
General Comments
Several labor unions and other employee advocacy groups expressed
general support for the way that the Proposed Guidance addressed
substantially similar violations. In contrast, employer groups and
advocates argued that the Department's proposed guidance on these
violations was too broad or too vague, particularly in the context of
those Labor Laws that concern equal employment opportunity and
nondiscrimination. One commenter representing industry interests argued
that repeated violations should be limited to the same type of
violation of the same statute.
In response to concerns that the guidance on the meaning of
``substantially similar'' was insufficiently clear, the final Guidance,
rather than proceeding by way of a general definition and statute-
specific examples, sets forth a statute-specific, exhaustive list of
violations that are substantially similar to each other, similar to the
Department's statute-specific guidance on serious and willful
violations. This list largely tracks the examples that were presented
in the Proposed Guidance, but some changes have been made, as noted
below. The Department believes that this approach will increase clarity
and lessen ambiguity regarding the classification of repeated
violations.
Under the final Guidance, as in the Proposed Guidance, certain
violations may be substantially similar to each other even though they
arise under different statutes. While the Department recognizes that
there may be violations that will be ``repeated'' under the Guidance
that are different in character or degree, such violations will often
point to underlying compliance practices in a company that the Order
seeks to eliminate from the performance of Federal contracts. An overly
narrow definition will fail to capture many violations that could help
identify such practices. While any definition of ``substantially
similar'' would likely draw criticism for both over-inclusiveness and
under-inclusiveness, the Department believes that the definitions in
the final Guidance strike the appropriate balance. The Department also
believes that these definitions are sufficiently clear for ALCAs to be
able to apply them.
The Department did not receive specific comments on the definitions
of ``substantially similar'' for violations of the FLSA, DBA, SCA,
Executive Order 13658, and MSPA, or on its proposal to treat as
substantially similar any two violations involving retaliation, any two
recordkeeping violations, or any two failures to post required notices.
The Department did receive comments on the definitions of
``substantially similar'' for other Labor Laws, as discussed below.
Family and Medical Leave Act
One advocacy organization commenter addressed the treatment of
repeated violations of the FMLA. The individual notice provisions of
the FMLA require that when an employee requests leave for a qualifying
reason, the employer must notify the employee of certain rights and
other information. The commenter argued that violations of this notice
provision should be treated as substantially similar to other FMLA
violations, such as interference and discrimination, because the FMLA's
individual notice provisions relate to a specific leave request and an
individual's ability to exercise his or her FMLA rights.
The Department declines to change this aspect of the definition of
repeated violations. The general notice and individual notice
requirements are both included in the same provision of the FMLA
regulations. 29 CFR 825.300. This provision is separate from the
regulatory provisions governing interference and discrimination. While
the Department agrees that a violation of individual notice
requirements could potentially be tied to, or result in, interference
and discrimination, this is also true for violations of the general
notice provisions. The Department believes that notice requirements are
sufficiently different from an employer's actual failure to provide
leave or other benefits that they should not be considered
substantially similar to those violations in the context of repeated
violations.
National Labor Relations Act
The Proposed Guidance stated, by way of example, that any two
violations of section 8(a)(3) of the NLRA would be substantially
similar to each other, but would not be substantially similar to
violations of section 8(a)(2). The Department did not provide further
guidance on the circumstances under which other NLRA violations would
be substantially similar. Consistent with the Department's decision to
set forth statute-specific definitions rather than examples, the final
Guidance states that any two violations of the same numbered subsection
of section 8(a) of the NLRA, which lists unfair labor practices by
employers, will be substantially similar. The Department also notes
that any two violations of the NLRA (or any of the Labor Laws) that
involve retaliation are substantially similar.
One labor organization commenter argued that the amendment of an
NLRB complaint should constitute a separate administrative merits
determination for the purpose of determining whether an employer has
committed a repeated violation. The commenter noted that sometimes the
NLRB will amend a complaint rather than issuing a new one where an
employer has committed
[[Page 58686]]
violations relating to an ongoing labor dispute over a long period of
time.
The final Guidance does not incorporate this suggestion. First, a
pending and contested NLRB complaint cannot serve as a prior violation
for the purposes of a repeated violation determination. As discussed
above, only an uncontested or adjudicated Labor Law decision can
constitute a prior violation. After adjudication or settlement of an
NLRB complaint, the complaint typically would not be amended.
Additionally, because complaints can be amended for numerous reasons
other than those identified by the commenter, the Department believes
that it would be impractical to require ALCAs to examine complaints in
order to determine when and why they were amended. As such, a single
NLRB complaint, regardless of whether it is amended, will constitute a
single administrative merits determination.
The same commenter also recommended that the Department treat
violations of section 8(a)(1), which prohibits employers from
interfering with, restraining, or coercing employees in the exercise of
the rights guaranteed in section 7 of the NLRA, as substantially
similar to violations of section 8(a)(3), which generally prohibits
employers from discriminating in regard to hire or tenure of
employment, or any term or condition of employment, to encourage or
discourage membership in a labor organization, for the purposes of
determining whether a violation was repeated. The Department declines
to adopt this suggestion, as it believes that it is overbroad in scope
and could result in dissimilar violations being classified as repeated.
Anti-Discrimination Labor Laws \65\
---------------------------------------------------------------------------
\65\ The term ``anti-discrimination Labor Laws'' refers to Title
VII, section 503 of the Rehabilitation Act of 1973, the ADA, the
ADEA, section 6(d) of the FLSA (known as the Equal Pay Act, 29
U.S.C. 206(d)), Executive Order 11246 of September 24, 1965, the
Vietnam Era Veterans' Readjustment Assistance Act of 1972, and the
Vietnam Era Veterans' Readjustment Assistance Act of 1974.
---------------------------------------------------------------------------
Some employer-group commenters expressed concern about the
application of the definition to the anti-discrimination laws. Under
the Proposed Guidance, such violations would be substantially similar
if they involved the same or an overlapping protected status, even if
they did not involve the same employment practice. One noted that, for
example, under the definition in the Guidance, if a company employed a
hiring test resulting in a disparate impact on women, and within 3
years, an individual manager in a different department engaged in
sexual harassment, the company would be found to have committed
repeated violations.
In response to these comments, the Department has made
modifications to narrow the definition of repeated violations in the
discrimination context. For purposes of the anti-discrimination Labor
Laws, violations are substantially similar if they involve (1) the same
protected status, and (2) at least one of the following elements in
common: (a) The same employment practice, or (b) the same worksite. In
nonsubstantive changes, the Department has removed the reference to
``overlapping'' protected statuses and the list of examples of
protected statuses, but has clarified that violations are considered to
involve the same protected status as long as the same status is present
in both violations, even if other protected statuses may be involved as
well. For the purpose of determining whether violations involve the
same worksite, the same definition of ``worksite'' that was used in the
discussion of the 25 percent criterion for a serious violation applies,
except that any two or more company-wide violations are considered to
involve the same worksite. The Department believes that this narrower
definition will better capture violations that are substantially
similar to each other.
Also, a number of employee advocates argued in their comments that
discrimination on the basis of sex, gender identity, sexual
orientation, and pregnancy should be considered to be ``the same or
overlapping'' protected statuses for the purpose of determining whether
a violation was repeated. These commenters asserted that discrimination
on the basis of these characteristics typically arises out of gender-
based stereotypes and that it would be appropriate to treat such
violations as substantially similar for purposes of the Order.
The Department has incorporated this suggestion in part. The
treatment of discrimination on the basis of pregnancy as a type of sex
discrimination is consistent with Title VII as amended by the Pregnancy
Discrimination Act. See 42 U.S.C. 2000e(k). Additionally, the treatment
of discrimination on the basis of gender identity (including
transgender status) as a type of sex discrimination is consistent with
the views of the EEOC, the Department, the Department of Justice, and
two Federal courts of appeals.\66\ With regard to discrimination on the
basis of sexual orientation, some courts have recognized in the wake of
Price Waterhouse v. Hopkins \67\ that discrimination ``because of sex''
includes discrimination based on sex stereotypes about sexual
attraction and sexual behavior \68\ or about deviations from
``heterosexually defined gender norms.'' \69\ In addition, the EEOC has
concluded that Title VII's prohibition of discrimination ``because of
sex'' includes sexual orientation discrimination because discrimination
on the basis of sexual orientation necessarily involves sex-based
considerations.\70\ The Department has taken the position that
discrimination on the basis of sex includes, at a minimum, sex
discrimination related to an individual's sexual orientation where the
evidence establishes that the discrimination is based on gender
stereotypes.\71\ Consistent with recent regulatory activity,\72\ the
Department will continue to monitor the developing law on sexual
orientation discrimination as sex discrimination under Title VII and
will interpret E.O. 11246's prohibition of sex discrimination in
conformity with Title VII principles.
---------------------------------------------------------------------------
\66\ See Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995
(EEOC 2012), Dep't of Labor, Ofc. of Fed. Contract Compliance
Programs, Final Rule, Discrimination on the Basis of Sex, 81 FR
39108, 39118-19 (June 15, 2016) (``OFCCP Sex Discrimination Final
Rule''); Memorandum from Attorney General Eric Holder to United
States Attorneys and Heads of Department Components (Dec. 15, 2014),
https://www.justice.gov/file/188671/download; Glenn v. Brumby, 663
F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566,
575 (6th Cir. 2004).
\67\ 490 U.S. 228 (1989).
\68\ See Videckis v. Pepperdine Univ., No. CV 15-00298, 2015 WL
8916764, at *5 (C.D. Cal. Dec. 15, 2015).
\69\ Isaacs v. Felder Servs., No. 2:13cv693-MHT, 2015 WL
6560655, at *4 (M.D. Ala. Oct. 29, 2015) (internal quotation
omitted).
\70\ Baldwin v. Dep't of Transp., Appeal No. 0120133080, 2015 WL
4397641, at *5 (EEOC 2015). For a more comprehensive discussion on
the state of the law on these issues, please see the OFCCP Sex
Discrimination Final Rule cited above; see also Dep't of Labor, Ofc.
of the Sec'y, Notice of Proposed Rulemaking, Implementation of the
Nondiscrimination and Equal Opportunity Provisions of the Workforce
Innovation and Opportunity Act, 81 FR 4494, 4507 (Jan. 26, 2016)
(``CRC WIOA NPRM'').
\71\ OFCCP Sex Discrimination Final Rule, 81 FR at 39118; CRC
WIOA NRPM, 81 FR at 4508-09.
\72\ See id.
---------------------------------------------------------------------------
In recognition of Title VII's explicit incorporation of pregnancy
discrimination as a type of sex discrimination and the Department's
previously articulated positions on gender identity discrimination
related to sexual orientation based on gender stereotyping, the
Department clarifies in the final Guidance that violations involving
discrimination on the bases of sex, pregnancy, gender identity
[[Page 58687]]
(including transgender status), and sex stereotyping (including
discrimination related to sexual orientation based on such
stereotyping) are considered to involve discrimination on the basis of
the same protected status for the purpose of determining whether two
violations are substantially similar. While the use of the term
``same'' does not intend to suggest that all of these forms of
discrimination are identical, these violations are sufficiently similar
to be classified as substantially similar violations under the Order.
Finally, one union commenter argued that any time an employer
commits multiple discrimination violations, regardless of whether they
involve the same protected status or employment practice, they should
be considered repeated violations. The Department declines to adopt
this suggestion. Violations of anti-discrimination requirements are
often fact-intensive and the Department does not believe it would be
appropriate to treat all such violations as substantially similar
absent the additional factors described above.
Alternative Proposal
A few commenters, including unions and other employee advocates,
argued that the scope of repeated violations should be expanded to
include any time a contractor has violated any one of the covered Labor
Laws five times in the last 3 years. The final Guidance does not adopt
this suggestion because it is inconsistent with the Order's specific
direction that a determination of a repeated violation be based on
``the same or a substantially similar requirement.'' However, the
Department notes that multiple violations that are not substantially
similar to each other may be properly considered in an evaluation of
whether such violations show sufficient disregard for the Labor Laws
that they constitute pervasive violations.
3. Willful Violations
The Proposed Guidance set forth several classification criteria for
determining whether a violation of one of the Labor Laws is a willful
violation under the Order. 80 FR 30585. Under the Proposed Guidance, a
willful violation was specifically defined for five Labor Laws--the OSH
Act or an OSHA-approved State Plan; the FLSA (including the Equal Pay
Act), the ADEA, Title VII, and the ADA. Under these statutes, the term
``willful'' has a well-established meaning or an analogous statutory
standard exists that is consistent with the Order. The Proposed
Guidance included a residual criterion for all other Labor Laws,
stating that a violation would be willful if
the findings of the relevant enforcement agency, court, arbitrator,
or arbitral panel support a conclusion that the contractor . . .
knew that its conduct was prohibited by any of the Labor Laws or
showed reckless disregard for, or acted with plain indifference to,
whether its conduct was prohibited by one or more requirements of
the Labor Laws.
Id.
a. OSH Act or OSHA-Approved State Plan Violations Enforced Through
Citations or Equivalent State Documents
The Proposed Guidance set forth a specific definition of a willful
violation for the OSH Act and OSHA-approved State Plans. It stated that
OSH Act and OSHA-approved State Plan violations would be willful if the
relevant enforcement agency had designated the citation as willful or
any equivalent State designation. 80 FR 30585.
As noted above, a few worker-advocate commenters expressed concern
that the Proposed Guidance's definitions of serious, repeated, willful,
and pervasive violations did not sufficiently account for OSH Act
violations that are not enforced through citations, such as retaliation
violations. As a result of these comments, the Department has clarified
this point of ambiguity by dividing OSH Act and OSHA-approved State
Plan violations into two categories: Citation OSHA violations and non-
citation OSHA violations. For the former, an OSHA or OSHA-approved
State Plan designation of ``willful'' (or an equivalent State
designation) controls the classification of the violation under the
Order. For the latter, a violation is willful if it meets the residual
standard for a willful violation--knowledge, reckless disregard, or
plain indifference.
In a nonsubstantive change, the final Guidance has also deleted
language stating that OSH Act and OSHA-approved State Plan citations
designated as willful are willful violations under the Order only if
the designation has not been subsequently vacated. This language is
unnecessary in light of the broader statement in the final Guidance
that if a Labor Law decision or portion thereof that would otherwise
cause a violation to be classified as serious, repeated, willful, or
pervasive is reversed or vacated, then the violation will not be
classified as such under the Order.
b. Violations of the Minimum Wage, Overtime, and Child Labor Provisions
of the FLSA
The Proposed Guidance stated that a violation of the FLSA would be
willful if an administrative merits determination sought or assessed
civil monetary penalties for a willful violation, or there was a civil
judgment or arbitral award or decision finding the contractor or
subcontractor liable for back wages for greater than 2 years or
affirming the assessment of civil monetary penalties for a willful
violation. 80 FR 30586. As in the case of OSH Act violations, these
criteria did not sufficiently account for all violations of the FLSA
because these criteria apply only to the FLSA's provisions on minimum
wage, overtime, and (in the case of civil monetary penalties) child
labor. See 29 U.S.C. 216(e)(1)(A)(ii), 216(e)(2), 216(e)(3)(C), 255.
Accordingly, the final Guidance clarifies that these criteria will only
be used to classify these violations of the FLSA, while other
violations of the FLSA--such as retaliation, see 29 U.S.C. 215(a)(3)--
will be classified using the residual criterion.
One commenter also expressed concern that it would be inappropriate
to classify an FLSA violation as willful due to the assessment or award
of more than 2 years of back wages because there are occasions when
employers agree to pay back wages for greater than 2 years even when an
FLSA violation is not willful. The Department declines to change the
Guidance in response to the above comment. Under the FLSA, WHD's
standard practice is to use an investigative period of up to 2 years
for non-willful violations and up to 3 years for willful violations,
and to assess back wages for the relevant investigative period. Thus,
WHD's standard practice is to assess no more than 2 years of back wages
in a form WH-56 unless the agency makes an investigative finding that
the violation was willful.
As a related matter, however, the Department has clarified that for
civil judgments and arbitral awards or decisions under the FLSA's
minimum wage and overtime provisions, a violation will only be
classified as willful under the Order if the Labor Law decision
includes a finding that the violation was willful. This is because in
such litigation, the 2-year limit for non-willful violations only
limits the recovery to the 2 years prior to the commencement of the
litigation. See 29 U.S.C. 255. It does not affect the recovery of
additional back wages if the violations continue while the litigation
is pending. If the violations continue after the commencement of
litigation, back wages can ultimately be awarded for more than 2
years--for up to 2 years prior to the commencement of the litigation,
plus any additional period of time from the date the litigation is
[[Page 58688]]
initiated until final judgment. Thus, because a non-willful violation
of the FLSA's minimum wage or overtime provisions reflected in a civil
judgment or arbitral award or decision may result in more than 2 years
of back wages, the final Guidance clarifies that whether such
violations are willful under the Order depends on whether the court or
arbitrator(s) makes a finding of willfulness--and does not depend on
the number of years of back wages awarded.
c. Violations of the ADEA
The Proposed Guidance stated that violations of the ADEA are
willful if the enforcement agency, court, arbitrator, or arbitral panel
assessed or awarded liquidated damages. One commenter asserted that an
ADEA violation might be willful even if liquidated damages are not
awarded, and therefore suggested that the Department apply the
willfulness residual criterion to ADEA violations in addition to the
liquidated damages criterion. The Department declines to expand the
application of the residual criterion to cover the ADEA. As discussed
below, in the discussion of the residual criterion generally, an
expansion of the residual criterion is unnecessary and would not
further the efficient administration of the Order.
d. Title VII and the ADA
One commenter suggested that the statute-specific criteria for
willful violations under Title VII and the ADA did not sufficiently
account for violations involving retaliation, and suggested adding the
words ``or retaliatory'' to describe the types of violations that could
involve punitive damages. The Department, however, believes that the
language in the Proposed Guidance sufficiently accounts for retaliation
cases. The criteria specified in the Guidance for willful violations
under Title VII and the ADA already applies to their anti-retaliation
provisions. See 42 U.S.C. 1981a(b)(1) (stating that punitive damages
may be awarded for any violation of Title VII or the ADA in which the
employer acts with malice or reckless indifference). As such, no
changes to the Guidance are necessary to clarify that retaliation
violations of these statutes may be classified as willful if they meet
the listed criteria.
e. Any Other Violations of the Labor Laws (Formerly ``Other Labor
Laws'')
The Proposed Guidance stated that for any Labor Laws for which a
specific criterion for willfulness was not listed, a violation would be
willful if
the findings of the relevant enforcement agency, court, arbitrator,
or arbitral panel support a conclusion that the contractor . . .
knew that its conduct was prohibited by any of the Labor Laws or
showed reckless disregard for, or acted with plain indifference to,
whether its conduct was prohibited by one or more requirements of
the Labor Laws.
80 FR 30586.
Several employee advocates argued that this residual standard
should apply to all of the Labor Laws, including the five statutes for
which the Guidance also includes statute-specific criteria (OSH Act/
OSHA-Approved State Plans, FLSA, ADEA, Title VII, ADA). These
commenters argued that the statute-specific criteria would not
necessarily capture all violations of those statutes in which the
employer engaged in willful conduct.
The Department declines to broaden the application of the residual
standard to all of the Labor Laws. The purpose of listing specific
standards for the five laws that already incorporate a concept of
willfulness (or, in the case of Title VII and the ADA, the related
standard of malice or reckless indifference) is to further the
efficient administration of the Order. Moreover, the Department
believes it is inappropriate for ALCAs to second-guess the decisions of
enforcement agencies, arbitrators, or courts as to whether or not a
violation was willful. Accordingly, for Labor Laws with an existing
willfulness framework, violations are only willful under the Order if
the relevant Labor Law decision explicitly includes such a finding.\73\
In contrast, for Labor Laws that do not have a willfulness framework,
an ALCA may examine the relevant Labor Law decision to determine
whether it is readily ascertainable from the decision that the
violation was willful under the residual criterion.
---------------------------------------------------------------------------
\73\ Some worker-advocacy commenters noted that the EEOC does
not assess punitive or liquidated damages at the reasonable-cause
stage. The Department recognizes that this means EEOC reasonable
cause determinations will not provide a basis for finding a
violation ``willful.''
---------------------------------------------------------------------------
A number of industry commenters expressed concern that the Proposed
Guidance's residual criterion is too vague, overbroad, and would not be
applied correctly or consistently. Several of these commenters
expressed particular concern about how prime contractors would be able
to apply this standard when assessing violations by subcontractors.
The final Guidance retains the residual criterion for willful
violations. While the Department agrees that a determination of
knowledge, reckless disregard, or plain indifference will depend on the
facts of individual cases, it believes that ALCAs will be able to
implement this standard with assistance of this Guidance and its
appendices. This standard is well-established, having been applied for
many years by courts and administrative agencies in the context of the
OSH Act, FLSA, and ADEA. The Department is confident that it can be
applied in the context of other Labor Laws as well. The Department also
notes that the key language of the residual criterion comes from the
Order itself, which states that where no statutory standards exist, the
standard for willfulness should take into account ``whether the entity
knew of, showed reckless disregard for, or acted with plain
indifference to the matter of whether its conduct was prohibited by the
requirements of the [Labor Laws].'' Order, section 4(b)(i)(B)(3). The
residual criterion in the Proposed Guidance conforms to the Order's
text, and the Department declines to narrow it further.
One industry commenter argued that this definition was too broad
and could in some cases be counterproductive, such as by penalizing
contractors for having a written policy in place which could in turn be
used as evidence of the contractor's knowledge of its legal
requirements. While the Department recognizes the commenter's concerns,
an employer's deviation from a written policy is plainly evidence that
the employer was aware of its legal obligations but chose to ignore
them. The Department believes that employers have sufficient existing
incentives to maintain written policies such that classifying a
violation as willful under these circumstances will not cause employers
to forgo written policies.
Another industry commenter expressed concern that one of the
examples of a non-willful VEVRAA violation in Appendix B of the
Proposed Guidance (now Appendix C in the final Guidance) described a
disparate impact case, which the commenter believed could create
confusion by suggesting that a disparate impact case under certain
circumstances could be a willful violation. The Department agrees that
disparate impact cases under VEVRAA, absent unusual circumstances, will
not be willful violations under the Order, and the intent of the
example is to illustrate just that.
The Department believes that the final FAR rule addresses the
industry commenters' concerns about application of the residual
willfulness standard by prime contractors. As noted in section V of
this section-by-section analysis, below, the final FAR rule clarifies
that subcontractors will make their detailed
[[Page 58689]]
Labor Law disclosures directly to the Department, and will receive
advice about their record of compliance from DOL which they may provide
to contractors. Under this structure, contractors will be able to rely
on the Department's classification determinations rather than making
the classification determinations themselves.
The Department further emphasizes that a determination of
willfulness will only be made if it is readily ascertainable from the
findings of the Labor Law decision. ALCAs will not examine case files
or evidentiary records in order to make assessments of willfulness.
Where the findings of the Labor Law decision do not include any facts
that indicate that a violation was willful, the violation will not be
considered willful under the Order.
f. Table of Examples
The Department has updated the table of examples to reflect the
changes in the final Guidance.
g. Other Comments on Willful Violations
Some employer groups also argued that the definition of willful
violations fails to account for the fact that employers sometimes must
deliberately commit a violation to obtain review of an agency's ruling.
They noted that, for example, employers must violate section 8(a) of
the NLRA by refusing to bargain with a union in order to obtain
appellate review of the NLRB's determination that a group of employees
is an appropriate bargaining unit. Two of these groups asserted that
such violations are ``technical'' violations that should not be
considered willful or even to be violations at all.
The Department declines to adopt a bright-line rule under which so-
called ``technical'' violations would not be considered violations or
would not be classified as willful. A contractor's belief that it had
justifiable reasons for committing a Labor Law violation is best
considered as a possible mitigating factor during the weighing process
described in section III(B) of the Guidance.
Some industry commenters also suggested that a violation should
only be classified as willful where the violation has been
``adjudicated.'' According to these commenters, agencies will often
initially allege that an employer's actions are willful or knowing,
even though they may not be. For example, OSHA might initially
designate a violation as willful in a citation, only to eventually
retreat from this position. Therefore, these commenters suggested,
willful violations should be limited solely to those administrative
merits determinations made by a neutral fact-finder after the employer
has been accorded the opportunity for a hearing.
For the same reasons the Department has provided in support of its
use of non-adjudicated administrative merits determinations generally,
the Department declines to limit willful violations to adjudicated
proceedings. However, as discussed above under ``Effect of reversal or
vacatur of basis for classification,'' the final Guidance clarifies
that a violation should not be classified as willful if an agency has
rescinded or vacated the aspect of an administrative merits
determination upon which a willfulness determination was based.
4. Pervasive Violations
The Proposed Guidance defined pervasive violations to be violations
that reflect a basic disregard by the contractor for the Labor Laws as
demonstrated by a pattern of serious or willful violations, continuing
violations, or numerous violations. See 80 FR 30588. The Proposed
Guidance also included additional factors and examples.
In General
Several employer groups expressed concern about the Proposed
Guidance's explanation of pervasive violations. These groups generally
argued that the definition was not sufficiently specific and would not
be applied consistently. Some of these commenters argued that the
category of pervasive violations should be eliminated entirely and that
the analyses relevant to pervasive violations (such as the involvement
of upper management) should instead be incorporated into the overall
assessment of a contractor's responsibility. Some argued that the
definition should instead be based on more ``objective'' criteria such
as numeric thresholds. One commenter, the Equal Employment Advisory
Council, urged the Department to amend the definition such that only a
contractor with a ``clear record of violations that unambiguously
demonstrates a lack of commitment to compliance responsibilities'' may
be found to have pervasive violations. In contrast, employee advocates
and civil rights groups generally supported the Department's definition
of pervasive violations. One labor union commenter suggested that a
large employer's violations be treated as pervasive if multiple
violations occur at a particular targeted facility, and that multiple
violations be treated as pervasive if they impact at least 25 percent
of the employees in the portion of the workforce targeted by the
employer.
The Department declines to eliminate the definition of pervasive.
The Order specifically instructs the Department to define a
classification of ``pervasive'' violations. Moreover, the Department
disagrees that the inquiry into whether a contractor has pervasive
violations is identical to the determination of whether that contractor
is responsible. In particular, a contractor with pervasive violations
may nonetheless ultimately be found responsible, depending on the
existence of mitigating factors and, potentially, the adoption of a
labor compliance agreement.
The Department also declines to make significant modifications to
the definition of pervasive or to adopt bright-line criteria. In the
Department's view, this definition necessarily must be flexible.
Notwithstanding the utility of the definitions of serious, repeated,
and willful violations, the Department recognizes that violations
falling within these classifications may still vary significantly in
their gravity, impact, and scope. Thus, it would not be reasonable to
require a finding of ``pervasive'' violations based on a set number or
combination of these violations. Similarly, the Department declines to
adopt rigid criteria that would mandate, for example, that any company
of a certain size with at least a certain designated number of serious,
repeated, or willful violations would be deemed to have pervasive
violations.
The lack of a bright-line test is not unique to the definition of
pervasive violations. The FAR provides contracting officers with
significant flexibility when assessing other elements of a contractor's
responsibility and past performance. See FAR 9.104-1, 42.1501. For
example, as a part of the responsibility determination, contracting
officers must consider a number of factors, including ``integrity and
business ethics'' and whether the contractor has ``the necessary
organization, experience, accounting and operational controls, and
technical skills, or the ability to obtain them.'' Id. 9.104-1.
Similarly, in past performance evaluations, contracting officers
consider factors such as whether the contractor has exhibited
``reasonable and cooperative behavior and commitment to customer
satisfaction'' and ``business-like concern for the interest of the
customer.'' Id. 42.1501(a). Finally, during the suspension and
debarment process, a suspending and debarring official has the
discretion not to debar a contractor based on a holistic
[[Page 58690]]
evaluation of multiple factors, such as the contractor's cooperation,
remedial measures, and effective internal control systems, which may
demonstrate a contractor's responsibility. See id. 9.406-1(a).
Accordingly, the Department does not believe that it is necessary or
appropriate to adopt rigid numerical criteria to define pervasive. The
Department notes, however, that violations will not be classified as
pervasive if they are minimal in nature, given that this category seeks
to encompass those contractors who act with a basic disregard for their
obligations under the Labor Laws. To that end, the Department expects
that this classification will be applied sparingly.
Size of the Contractor
The Order provides that the standards for pervasive should take
into account
the number of violations of a requirement or the aggregate number of
violations of requirements in relation to the size of the entity.
Order, section 4(b)(i)(B)(4). The Proposed Guidance stated that
whether a contract is found to have pervasive violations ``will depend
on the size of the contractor . . ., as well as the nature of the
violations themselves.'' 80 FR 30574, 30588. The Proposed Guidance
specifically requested comments by interested parties regarding how
best to assess the number of a contractor's violations in light of its
size.
One industry commenter requested clarification on how the size of a
contractor will impact the determination of whether violations are
pervasive, and on the meaning of the terms ``small,'' ``medium-sized,''
and ``large'' within the meaning of the examples set out in the
Guidance. In contrast, several employee advocates cautioned against
giving undue weight to a company's size when assessing whether
violations are pervasive. These commenters argued that while smaller
companies with numerous violations clearly should be considered
pervasive violators, the size of a large company alone should not
excuse its violations of Labor Laws.
The Department declines to modify the definition of pervasive
either to eliminate or to further specify criteria for measuring
company size. The Department does not eliminate the company-size factor
because, as noted above, the Order explicitly requires the Department
to take this factor into account in the definition of pervasive. Order,
section 4(b)(i)(B)(4). This makes sense because, as the Proposed
Guidance notes, larger companies can be expected to have a greater
number of violations overall than smaller companies. The Department
agrees, however, that an employer's size does not automatically excuse
any violations. Rather, the size of the employer will be one factor
among many assessed when considering whether violations are pervasive.
Likewise, the Department declines to establish specific criteria for
how company size will affect the determination of pervasive violations.
As noted above, the violations that ALCAs will consider and assess will
vary significantly, making the imposition of bright-line rules for
company size inadvisable. However, the Department has modified the
examples in the Guidance so that each example notes the number of
employees for the contractor. These examples are not intended to serve
as minimum requirements, but simply as illustrations of circumstances
under which violations may be classified as pervasive.
Involvement of Higher-Level Management
The Proposed Guidance also explained that a violation is more
likely to be pervasive when higher-level management officials are
involved in the misconduct. This is because such involvement signals to
the workforce that future violations will be tolerated or condoned.
Involvement of high-level managers may also dissuade workers from
reporting violations or raising complaints. The Guidance also noted
that if managers actively avoid learning about Labor Law violations,
this may also indicate that the violations are pervasive.
While worker-advocacy groups supported the inclusion of the higher-
level management factor, some employer groups asked the Department to
clarify what constitutes higher-level management and expressed concern
that this criterion would be applied to low-level management. For
example, one commenter suggested that discrimination or harassment by a
``rogue'' manager should not result in a determination that the
violations are pervasive if the company had strong nondiscrimination
and anti-harassment policies in place and takes swift and appropriate
remedial action upon learning of the manager's actions. Another
commented that the Guidance should add that managers need to be trained
only to the extent needed to perform their managerial duties.
By using the term ``higher-level management,'' the Department did
not suggest that the involvement of any employees with managerial
responsibilities would be deemed a pervasive violation. The Department
agrees that a violation is unlikely to be classified as pervasive where
the manager involved is low-level (such as a first-line supervisor),
acting contrary to a strong company policy, and the company responds
with appropriate remedial action, and the Department has clarified this
point in the final Guidance. The Department further notes that in the
weighing step of the assessment process (discussed below), an ALCA will
consider a contractor's remedial action as an important factor that may
mitigate the existence of a violation.
B. Weighing Labor Law Violations and Mitigating Factors (Step Two)
(Formerly ``Assessing Violations and Considering Mitigating Factors'')
As discussed above, an ALCA's assessment of and advice regarding a
contractor's Labor Law violations involves a three-step process. In the
classification step, the ALCA reviews all of the contractor's
violations to determine if any are serious, repeated, willful, and/or
pervasive. In the weighing step, the ALCA then analyzes any serious,
repeated, willful, and/or pervasive violations in light of the totality
of the circumstances, including any mitigating factors that are
present. In the final advice step, the ALCA provides written analysis
and advice to the contracting officer regarding the contractor's record
of Labor Law compliance, and whether a labor compliance agreement or
other action is needed.
Based on the comments and additional deliberations, the Department
modifies the final Guidance to improve the clarity and organization of
the weighing section. For example, the Department has changed the
reference in the Proposed Guidance to violations that ``raise
particular concerns'' to ``factors that weigh against a satisfactory
record of Labor Law compliance.'' The Department has also included
further explanation of the process to clarify that ALCAs do not make
findings that specific violations are ``violations of particular
concern.'' Rather, the ALCA proceeds with a holistic review that
considers the totality of the circumstances and considers all of the
relevant factors.
A summary of the comments, the Department's responses, and any
changes adopted in the final Guidance are set forth below.
ALCA Capacity and Training
A number of commenters expressed concern about the capacity of
ALCAs to
[[Page 58691]]
complete their duties effectively. One employer representative argued
that ALCAs will not be equipped to analyze employer submissions
regarding mitigating factors. This commenter believed that contractors
will likely attempt to show mitigating circumstances by submitting
evidence in an effort to re-litigate whether a violation actually
occurred or whether the amount of damages awarded was correct.
Contractors will also make legal arguments about ``good faith'' and
whether remediation was appropriate. The commenter asserted that ALCAs
may have difficulty sifting through the legal complexities of these
submissions.
As a related matter, some commenters stressed the importance of
adequate training and support for ALCAs. For example, several labor
unions highlighted the need for ALCA training, and suggested such
training should include a role of unions and other interested parties.
A number of employer representatives argued that the Federal Government
likely did not have sufficient resources to provide enough staff and
training to prevent bottlenecks in evaluating contractor integrity and
business ethics.
The Department has considered these comments and, as a general
matter, believes that they support the Department's development of this
Guidance to include specific guidelines for classifying Labor Law
violations and for evaluating the totality of the circumstances. The
Department's intent with this Guidance has been to create a document
that contains appropriate context and narrative description to assist
ALCAs and other interested parties with carrying out their
responsibilities under the Order.
In response to these comments, the Department has also added
language to the Guidance that clarifies the role of ALCAs in assessing
contractors' records of compliance. The Guidance clarifies that in
classifying Labor Law decisions, ALCAs consider ``information that is
readily ascertainable from the Labor Law decisions themselves.''
Guidance, section III(A). And, while mitigating circumstances will be
considered, the Department has clarified in the Guidance that re-
litigation of a disclosed Labor Law decision is not appropriate. See
id. (``ALCAs do not second-guess or re-litigate enforcement actions or
the decisions of reviewing officials, courts, and arbitrators.''). The
Department has also tailored the ``good faith'' mitigating factor to
situations where ``the findings in the relevant Labor Law decision''
support the contractor's argument, so that the consideration of good
faith does not become a far-reaching effort to re-litigate the decision
itself. See id. section III(B)(1)(f).
Finally, the Department strongly agrees with the comments on the
importance of adequate training and support for ALCAs, and the
Department--in coordination with the Office of Management and Budget--
will provide such training as part of the implementation of the FAR
rule and the Guidance.
Exercise of Discretion
Numerous employer organizations argued that the guidelines for
weighing violations of particular concern and mitigating factors are
subjective and ambiguous, which may lead to inconsistent determinations
between ALCAs and across agencies. These groups argued that the
Proposed Guidance gave ALCAs and contracting officers too much
discretion in how to weigh the various factors and whether to require
negotiation of a labor compliance agreement.
The Department rejects the argument that the weighing process will
involve improper subjective decision-making by ALCAs or contracting
officers. These assessments will necessarily involve exercising
judgment and discretion, but the exercise of judgment and discretion
are a fundamental part of the pre-existing FAR responsibility
determination.\74\
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\74\ See Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1334-35 (Fed. Cir. 2001) (``Contracting
officers are generally given wide discretion in making
responsibility determinations and in determining the amount of
information that is required to make a responsibility
determination.'' (internal quotations marks and citations omitted)).
---------------------------------------------------------------------------
As discussed above, the FAR provides contracting officers with
significant flexibility when assessing other elements of a contractor's
responsibility. See FAR 9.104-1. Contracting officers must consider a
number of factors, such as ``a satisfactory performance record,''
``integrity and business ethics,'' and whether the contractor has ``the
necessary organization, experience, accounting and operational
controls, and technical skills, or the ability to obtain them.'' Id.
The test for debarment similarly relies on a holistic evaluation of
multiple factors, such as the contractor's cooperation, remedial
measures, and effective internal control systems. See FAR 9.406-1(a).
The Department does not believe that the new requirements and
processes that implement the Order require the exercise of more
discretion or subjectivity than these existing determinations. To the
contrary, the final FAR rule and the final Guidance contain detailed
guidelines and examples to assist ALCAs and contracting officers in
their respective roles.
The Department also notes that the Order expressly requires the FAR
and the Department to create processes to ensure government-wide
consistency in the implementation of the Order. ALCAs will work closely
with the Department during more complicated determinations, and the
Department will be able to assist ALCAs in comparing a contractor's
record with records that have in other cases resulted in advice that a
labor compliance agreement is needed, or that notification of the
suspending and debarring official is appropriate. Through its work with
enforcement agencies, the Department also will provide assistance in
analyzing whether remediation efforts are sufficient to bring
contractors into compliance with Labor Laws and whether contractors
have implemented programs or processes that will ensure future
compliance in the course of performance of Federal contracts. This
level of coordination will ensure that ALCAs (and through them,
contracting officers), receive guidance and structure.
Concern About Delays in the Procurement Process
Industry commenters raised various concerns about burdens
associated with the assessment by ALCAs of a contractor's Labor Law
violations, citing potential regulatory bottlenecks and delays. For
example, commenters opined that an awarding agency's ALCA could
disagree with another agency's ALCA on the impact of a particular
violation on the contractor's responsibility--or that an ALCA could
disagree with its own agency's contracting officer, delaying one
agency's award until the differences could be resolved.
The Department has carefully considered these comments, but finds
them to take issue largely with the structure mandated by the Order
itself and not with any specific aspect of the Department's Guidance.
The plain text of the Order requires contracting officers to consider
Labor Law violations as part of the responsibility determination and
requires contracting officers to consult with ALCAs as a part of this
process. Order, section 2(a)(iii).
The Department also notes that the FAR Council has structured the
assessment and advice process to limit the risk of delay. As discussed
below, the final FAR rule maintains the default 3-day period for an
ALCA to provide advice. FAR 22.2004-2(b)(2)(i). It also retains the
requirement that if the
[[Page 58692]]
contracting officer has not received timely advice, the contracting
officer must proceed with the responsibility determination ``using
available information and business judgment.'' Id. 22.2004-
2(b)(5)(iii). The Department believes that this authority granted to
contracting officers will allow contracting officers to proceed without
delay where necessary.
1. Mitigating Factors That Weigh in Favor of a Satisfactory Record of
Labor Law Compliance
The Order instructs contracting officers to afford contractors the
opportunity to disclose any steps taken to come into compliance with
Labor Laws. Order, section 2(a)(ii). It also seeks to ensure that ALCAs
and contracting officers give appropriate consideration to remedial
measures and other mitigating factors when assessing a contractor's
record. See id. section 4(a)(ii). The Department's Proposed Guidance
provided a non-exclusive list of mitigating factors that ALCAs should
consider in the weighing process. 80 FR 30574, 30590-91. It stated that
remediation efforts--actions to correct the violation and prevent its
recurrence--are typically the most important mitigating factor. Id. at
30590.
General Comments
A number of unions and employee-advocacy organizations raised
concerns with the mitigating factors listed in the Guidance. One
commenter stated that the Guidance should not treat circumstances such
as ``a long period of compliance'' or ``a single violation'' as
mitigating factors. It argued that these factors may not provide an
accurate assessment of the contractor's behavior, as a single violation
may be severe and impactful. The commenter also noted that the low
number of violations may be due to infrequent inspections by the
enforcement agency during the 3-year period, rather than conduct that
actually complies with Labor Laws.
Some worker-advocacy organizations argued that the Guidance should
not take into account the number of violations relative to the size of
the contractor. These commenters cautioned that size should not be an
excuse for a large number of major violations. They further noted that
large companies, due to their greater resources, may actually be more
capable of preventing and remedying violations than smaller companies.
Similarly, a number of commenters discussed whether a contractor's
safety-and-health program should be considered a mitigating factor.
Some union and employee-advocacy organizations argued that only
certain, qualifying safety-and-health programs should be considered as
mitigating factors. They suggested that the contractor must show that
its program is being actively and effectively implemented and meets
other requirements. For example, some commenters stated that a
contractor with repeated or pervasive OSHA violations should not be
able to point to its safety-and-health program as a mitigating factor
because the violations demonstrate that the employer's safety-and-
health programs have not been adequate.
The Department declines to make any substantive changes to the
guidance on mitigating factors. In most instances, the number of
violations, the period of compliance, the violations relative to size,
and the implementation of compliance programs will be important factors
in weighing the significance of a contractor's Labor Law violations. In
response to the commenters' concerns, the Department notes that the
ALCA will weigh a contractor's Labor Law violations based on the
totality of the circumstances. For example, it is generally true that a
single violation will not lead to a conclusion that the contractor has
an unsatisfactory record of Labor Law compliance. However, it is
possible that a single violation may merit advice that a labor
compliance agreement is needed because of the violation's severity and
because the harm has not been remediated. Similarly, concerns about
``paper'' compliance programs will also be addressed through the ALCAs'
consideration of the totality of the circumstances--which may include
the adequacy of a compliance program put forth as a mitigating
circumstance.
Remediation Efforts
The Proposed Guidance explained that ALCAs should give greater
mitigating weight to contractors' remediation efforts when they involve
two components: (1) ``correct[ing] the violation itself, including by
making any affected workers whole'' and (2) taking steps to ensure
future compliance so that violations do not recur. See 80 FR 30574,
30590. The Proposed Guidance stated that the fact that a contractor has
entered into a labor compliance agreement should be considered a
mitigating factor. Id.
Several employer groups stated that the discussion of remediation
efforts in the Proposed Guidance was confusing, and they expressed
concerns about the extent of their obligations under the Order. In
particular, some objected to the Proposed Guidance statement that ``in
most cases, the most important mitigating factors will be the extent to
which the contractor or subcontractor has remediated the violation and
taken steps to prevent its recurrence.'' 80 FR at 30590. In their view,
this suggests that ALCAs--through labor compliance agreements--could
impose remediation measures that go beyond what is required to comply
with the labor law at issue. They also argued that the Proposed
Guidance was unclear about what constitutes appropriate remedial
measures.
One employer representative, the Equal Employment Advisory Council
(EEAC), urged the Department to clarify the Proposed Guidance's
reference to ``making any affected workers whole.'' 80 FR at 30590.
EEAC suggested that where an employer has entered into a settlement
agreement with an enforcement agency for backpay that is less than the
amount initially proposed in an administrative merits determination,
the compromise amount of relief should be accepted as a ``make whole''
remedy of the violation.
Finally, several employer representatives objected to the use of
remediation as a mitigating factor when the employer has challenged the
violation and the matter has not yet been fully adjudicated--that is,
while the employer is seeking administrative or judicial review of an
administrative merits determination. The EEAC asserted that a
contractor ``cannot enter into remediation as described by the proposal
if it chooses to contest the agency's finding through administrative
tribunals, in court, or elsewhere.'' The EEAC argued that the Guidance
should ``recognize that where a violation is being contested, a
contractor may still demonstrate mitigating factors apply, although
remediation may not be the most important factor in such cases.''
After carefully considering all the comments, the Department
modifies the discussion of remediation in the Guidance for clarity, but
otherwise declines to make substantive changes. The Department does not
believe that the Guidance was unclear about what constitutes a remedial
measure. As the Guidance notes, remedial measures can include measures
taken to correct an unlawful practice, make affected employees whole,
or otherwise comply with a contractor's obligations under the Labor
Laws. See Guidance, section III(B)(1)(a). The measures taken to correct
an unlawful practice or make employees whole are necessarily specific
to the Labor Law violation at issue. For example, where WHD finds that
an employee was misclassified as an independent contractor and not paid
[[Page 58693]]
a minimum wage or overtime under the FLSA, remedial measures could
include correcting the practice by appropriately classifying the
employee going forward (or appropriately classifying all similarly
situated employees going forward) and making the employee whole by
paying to the employee the back wages that the Labor Law decision
specifies are owed to the employee.
The Department does not agree that the Guidance should limit
consideration of preventative measures as ``remediation'' because those
measures may go beyond the basic legal requirements under the Labor
Laws. The commenters that suggested such a limit confuse both the
purpose of the Order and the authority under which it was promulgated.
The purpose of the Order is not to better enforce the Labor Laws
generally, and the President did not promulgate the Order under the
legal authority of the specific Labor Law statutes. Rather, the Order's
purpose is to increase efficiency and cost savings in the work
performed by parties that contract with the Federal Government by
ensuring that they understand and comply with labor laws. See Order,
section 1. And the Order was promulgated under the President's
authority under the Procurement Act, not the Labor Laws. Accordingly,
ALCAs and contracting officers are not barred from crediting
contractors for implementing future-oriented measures that go beyond
the minimum specifically required under the Labor Laws--whether
voluntarily, through a settlement with an enforcement agency, or
through a labor compliance agreement negotiated at the suggestion of an
ALCA.\75\
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\75\ The Department has modified the Guidance to include a
separate and more extensive explanation of labor compliance
agreements as a part of the subsequent section III(C), ``Advice
regarding a contractor's record of Labor Law compliance.''
Accordingly, the Department summarizes and responds to comments
regarding labor compliance agreements below as a part of a parallel
section in this section-by-section analysis. In that section, the
Department responds to commenters' concern about whether it is
appropriate for a labor compliance agreement to require preventative
measures that may go beyond minimum compliance with the Labor Laws.
---------------------------------------------------------------------------
The Guidance recognizes enterprise-wide efforts and enhanced
settlement agreements as particularly important because they reflect a
contractor's commitment to preventing future Labor Law violations and
may include internal compliance mechanisms that will catch (and
encourage the correction of) potential problems at an early stage.
These kinds of preventative measures are exactly the type of policies
and practices that increase efficiency in Federal contracting by
limiting the likelihood that violations will occur during the
subsequent performance of a Federal contract. The Department clarifies
in the final Guidance that ALCAs thus may appropriately consider such
efforts or measures as weighing in favor of a satisfactory record of
Labor Law compliance.
The Department agrees with the EEAC that ALCAs should not second-
guess the remediation that has already been negotiated by enforcement
agencies. A contractor's prior settlement with an enforcement agency
should generally be considered to be ``make-whole'' relief on behalf of
affected workers. Such settlement agreements reflect the agency's
decisions about the appropriate amount of backpay owed and the specific
steps needed to correct the violations or otherwise make affected
workers whole. Accordingly, ALCAs will not revisit whether an existing
agreement with an enforcement agency adequately corrects a violation.
Nonetheless, the existence of a settlement agreement does not bar
an ALCA from considering that a violation occurred in the first place.
Nor does remediation carried out because of such a settlement agreement
necessarily have great weight where there are other factors present--
such as an extensive pattern of violations, other violations that were
not within the jurisdiction of the agency negotiating the settlement,
or the existence of new violations subsequent to the settlement. In
such circumstances, if the settlement agreement does not include
measures to prevent future violations, then a contracting officer (in
consultation with an ALCA) may decide that a labor compliance agreement
is warranted in order to consider the contractor to be responsible or
may find the contractor nonresponsible. See Guidance, section III(C).
With regard to the commenters' concerns about engaging in
remediation during ongoing litigation, the Department does not believe
any change to the Guidance is necessary. It is not clear from the EEAC
comment why a contractor could not remediate while continuing to
contest a violation. Employers often choose to remediate during ongoing
litigation for various reasons, including to limit backpay liability.
Finally, the Department rejects the commenters' implication that
crediting remediation during ongoing litigation violates a contractor's
right to due process. Employers who receive administrative findings of
Labor Law violations have the right to due process, including various
levels of adjudication and review before administrative and judicial
tribunals, depending on the labor law involved in the violation. The
purpose of the Order is not to circumvent that adjudicatory and
appellate process. Rather, contracting officers have a duty to protect
the procurement process by conducting responsibility determinations
(and ALCAs have a duty to provide advice regarding Labor Law
violations) to ensure that Federal contractors are responsible and that
they will not engage in Labor Law violations that could undermine the
quality and timeliness of Federal contract performance. Thus, the
purpose of valuing remediation as a mitigating factor--even during
ongoing litigation--is to give a contractor with a significant record
of non-compliance an opportunity to take corrective action and make
systemic changes in order to prevent violations during the performance
of a future Federal contract.
Worker Participation in Safety-and-Health Programs
Several unions proposed that to qualify as a mitigating factor,
safety-and-health programs should encourage active worker
participation. One union commented that these programs must encourage
the reporting of work hazards and injuries without penalty. Some
commenters also supported the implementation of joint labor-management
safety-and-health committees. One industry commenter recommended that
the category of mitigating factors related to safety-and-health
programs should ``explicitly include participation in OSHA Voluntary
Protection Programs'' as well as include reference to ISO 45001, which
is a voluntary consensus standard for occupational safety-and-health
management systems currently under development. The commenter argued
that both of these include elements similar to the standards already
referenced in the Proposed Guidance, including employee involvement and
continuous improvement.
As discussed above, the Department considers further specific
guidance on the content of safety-and-health programs to be
unnecessary. ALCAs will have the ability to take additional information
about safety-and-health programs into consideration as part of their
review of the totality of the circumstances. In particular, the
Department agrees that OSHA's Voluntary Protection Programs and the ISO
45001 consensus standard are similar to the programs and standards
[[Page 58694]]
cited in the proposed guidance on mitigating factors. As such,
employers who participate in such programs or have adopted safety-and-
health management systems pursuant to recognized consensus standards
are encouraged to include this information when they have an
opportunity to provide relevant information, including regarding
mitigating factors.
Other Compliance Programs
One commenter suggested that other types of compliance programs--
not just safety-and-health programs or grievance procedures--should be
considered as mitigating factors. The commenter recommended retitling
this factor or adding a separate subsection specifically on compliance
programs.
The Department agrees that other compliance programs should be
included in this category, and notes that the Proposed Guidance already
references ``other compliance programs'' in the mitigating factors
discussion. To improve clarity, the Department adopts the commenter's
recommendation to retitle this factor. This category is now entitled
``Safety-and-health programs, grievance procedures, or other compliance
programs.''
Good Faith and Reasonable Grounds
One industry commenter, the Associated General Contractors of
America (AGC), expressed concern that contractors' good-faith defenses
``will not carry considerable weight in the responsibility
determination.'' AGC argued that while ALCAs may have the legal
understanding to make informed judgments about good faith disputes, the
contracting officers who ultimately make a responsibility determination
do not--and will instead defer to the agency determination or court
judgment.
The Department believes that it is important to provide contractors
with an opportunity to explain violations in cases where the contractor
may have made efforts to ascertain and meet its legal obligations, but
nonetheless have violated the law because of reliance on advice of a
government official or an authoritative agency or court decision.
For example, several commenters proposed that the Guidance should
account for situations where a violation is due to an agency error.
With regard to the DBA and the SCA, for example, commenters noted that
some violations are caused by the failure of the contracting agency to
include the appropriate wage determination contract language. One
commenter argued that contractors should not have to disclose these
types of violations, while the other noted that the Proposed Guidance
is unclear about how the Department will assess these types of
violations. The Department agrees that it is important to account for
violations that result from errors beyond the contractor's control.
Where the contractor submits information showing that a violation
occurred as the result of action or inaction by the contracting agency,
such as the failure to include a required contract clause or wage
determination, this information supports a conclusion that the
contractor acted in good faith and had reasonable grounds for its
conduct. While the Department believes that the language of the
Proposed Guidance was broad enough to incorporate this concept, the
final Guidance includes a clarification to this effect.
In addition, as discussed above in section III(A)(3)(e), some
employer groups noted that employers must violate section 8(a) of the
NLRA by refusing to bargain with a union in order to obtain appellate
review of the NLRB's determination that a group of employees is an
appropriate bargaining unit. While the Department does not view such
violations as excusable or merely ``technical,'' it does agree that the
contractor's belief that it had justifiable reasons for committing a
Labor Law violation should be taken into account as a possible
mitigating factor during the weighing process.
The Department believes that the Order and the related new
requirements and processes adequately address AGC's concerns about the
capacity of contracting officers to weigh good-faith arguments. As
discussed above, GAO reports have repeatedly stated that prior to the
Order, contracting officers had the authority to consider labor
violations during the responsibility determination process, but were
reluctant to do so in part because of a lack of expertise on the
matter. In response, the Order directed executive agencies to designate
ALCAs and to coordinate with the Department so that contracting
officers receive enough support. ALCAs will assist contracting officers
with interpreting information about good faith and reasonable grounds
as part of ALCAs' analysis and advice regarding contractor's record of
Labor Law compliance.
Significant Period of Compliance
One employee-advocacy organization suggested that the Guidance
should not include the ``long period of compliance'' factor. The
organization commented that this factor may not provide an accurate
assessment of the contractor's responsibility because a long period of
``compliance'' may be the result of infrequent inspections by Federal
enforcement agencies during the 3-year disclosure period. It also
commented that the duration of the ``significant period of compliance''
was not clearly defined.
Although the Department has declined to eliminate this factor, the
Department has added language to address the concern that the duration
of ``significant period'' was not defined. The Department has clarified
that this factor is a stronger mitigating factor where the contractor
has a recent Labor Law decision that it must disclose, but the
underlying conduct took place significantly before the 3-year
disclosure period and the contractor has had no subsequent violations.
Proposals To Expressly Include Additional Mitigating Factors
The Department also received comments that the Guidance should
include additional mitigating factors.
Some labor organizations proposed that a contractor's participation
in a collective bargaining agreement (CBA) should be considered a
mitigating factor. This proposal is based on the view that workers
covered by a CBA are likely to feel more secure reporting violations
and working to get the violations resolved. In these circumstances,
unionized employers may have a higher number of disclosed Labor Law
decisions than non-union employers, particularly in the area of safety
and health.
While the final Guidance does not explicitly list a CBA as a
mitigating factor, the Department clarifies in response to this comment
that the list of mitigating factors in the Guidance is non-exclusive.
The FAR rule states that an ALCA's analysis and advice must include
whether there are ``any'' mitigating factors. FAR 22.2004-2(b)(4)(iii).
Thus, to the extent that a contractor believes that a CBA provision is
relevant to the violation at issue, a contractor should submit this
information for consideration as a mitigating factor.
Finally, one industry commenter stated that the FAR rule and
Guidance sections on mitigating circumstances should place greater
emphasis on a contractor's overall commitment to compliance to Labor
Laws (as evidenced by its policies and practices), and require ALCAs
and contracting officers to consider such information. The Department
considers any such modification to be unnecessary. The Proposed
Guidance already recognized the importance of a contractor's overall
commitment to compliance by assessing
[[Page 58695]]
various factors such as the number and severity of violations, the
existence of safety-and-health programs, and arguments about good faith
and reasonable grounds.
2. Factors That Weigh Against a Satisfactory Record of Labor Law
Compliance
The Department received numerous comments about the Proposed
Guidance's explanation of violations that ``raise particular concerns''
about contractor integrity and business ethics. The Proposed Guidance
provided a non-exclusive list of certain types of violations that raise
particular concern: Pervasive violations, violations that meet two or
more of the serious, repeated, or willful classifications, violations
that are reflected in final orders, and violations of particular
gravity. Some commenters felt that these categories were too broad,
while others proposed expanding them further.
Several employer organizations argued that the Proposed Guidance
did not provide sufficient detail on how ALCAs and contracting officers
are to assess the various factors. These commenters said that the
categories of violations that ``raise particular concern'' were vague
and too expansive, and as a result ALCAs and contracting officers would
have unchecked discretion when making assessments.
The Department declines to modify the Guidance in this respect. The
Department does not agree that the categories of violations discussed
in this section of the Guidance are too broad or vague. The categories
are specific and are based on concrete, factual information--for
example, the total damages and penalties assessed--that will usually be
readily apparent from the findings in the Labor Law decisions.
However, the Department has changed the name of this category from
``violations of particular concern'' to ``factors that weigh against a
satisfactory record of Labor Law compliance.'' This change is not
substantive but helps make clear that ALCAs will not make a finding as
to whether any individual violation is a ``violation of particular
concern.'' Rather, ALCAs will assess all facts and circumstances that
weigh for and against a conclusion that a contractor has a satisfactory
record of compliance in order to provide helpful analysis and advice to
the contracting officer.
Pervasive Violations
The Proposed Guidance stated that pervasive violations should
receive greater weight because they raise particular concern about a
contractor's integrity and business ethics. Several industry
representatives commented that the Guidance does not provide sufficient
direction on how to weigh whether pervasive violations would trigger
the requirement for a labor compliance agreement. One suggested that
quantitative information based on DOL enforcement data should be used
to make an empirical definition of pervasiveness, based on a comparison
with other employers in the same industry and jurisdiction. Other
employer representatives repeated their view that the pervasive
category is overly broad and vaguely defined, giving contracting
officers and ALCAs too much discretion in assessing the record of a
contractor with pervasive violations or deciding whether a labor
compliance agreement is warranted.
The Department declines to modify the guidance on weighing
pervasive violations. As explained above and in the previous discussion
of the definition of pervasive, flexibility and discretion are
necessary when assessing the severity of pervasive violations, given
the range of factors that must be considered. The Department does not
believe it would be appropriate to set a finite threshold for the
number or types of violations that indicate a lack of integrity and
business ethics and therefore suggest that a labor compliance agreement
may be warranted.
Violations That Meet Two or More of the Serious, Repeated, or Willful
Classifications
The Proposed Guidance stated that violations that fall into at
least two of the serious, repeated, or willful classifications are
violations of particular concern. Some industry groups questioned this
approach. For example, one employer organization argued that these
classifications are defined so broadly that many violations will fall
into two of them even though the violations themselves are not
significant enough to bear on contractor integrity and business ethics.
The Department retains this criterion as an example of a factor that
weighs against a satisfactory record of Labor Law compliance; and the
Department has added an additional clarification to section III(A) of
the Guidance that a single violation may satisfy the criteria for more
than one classification. As explained above, the Department disagrees
that the serious, repeated, and willful classifications are defined too
broadly.
Violations That Are Reflected in Final Orders
In the Proposed Guidance, the Department stated that violations
reflected in final orders should receive greater weight. Several
commenters supported this proposal. The Service Employees International
Union (SEIU), however, argued that lodging an appeal should not prevent
a determination from receiving greater weight if the contractor's
``appeal is clearly non-meritorious or frivolous and was taken in order
to delay compliance.'' SEIU further stated that, conversely, if an
appeal of an adverse determination is ``of a close or unsettled point
of law, lesser weight should be given to the nonfinal violation(s).''
The Department declines to change the Guidance in this manner.
ALCAs will not be able to evaluate the legal merit of or motivation
behind a contractor's appeal, nor should they attempt to do so.
However, the Department agrees with SEIU commenter that whether a
violation involves a ``close or unsettled point of law'' may in certain
circumstances be relevant in the assessment process. For example, as
discussed above, the Guidance provides that a contractor's good-faith
effort to meet its legal obligations may be a mitigating factor--and
that this may occur where a new statute, rule, or standard is first
implemented and the issue presented is novel.
SEIU's underlying concern is that providing extra weight to final
decisions could incentivize contractors to contest a Labor Law decision
that they might otherwise not have contested--simply in order to delay
it from becoming final under after a contract has been awarded. The
Department acknowledges that such an outcome would be problematic and
could lead to unnecessary litigation and uncertainty, and perhaps a
delay in the correction of a violation or relief to injured workers.
However, the Department does not believe that this outcome will be the
practical result of the Guidance.
As an initial matter, if a Labor Law decision is contested,
subsequent decisions (e.g., on an appeal) will themselves be Labor Law
decisions that will need to be disclosed under the Order. See Guidance,
section II(B)(4). However, an uncontested (and therefore final)
decision will no longer be considered by an ALCA during review of the
contractor's record, nor by the contracting officer during the
responsibility determination, after 3 years. And, as the final Guidance
notes, ``[w]hile a violation that is not final
[[Page 58696]]
should be given lesser weight, it will still be considered as relevant
to a contractor's record of Labor Law compliance.'' Id. section
III(B)(2)(e). This provides a counterweight to the perceived incentive
to contest violations.
An even more significant counterweight is the value placed on
mitigating factors, and, in particular, remediation as a mitigating
factor. If a contractor has remediated the violation, that factor
weighs in favor of a satisfactory record of compliance. Thus, while
there may be an incentive for contractors to contest a violation,
contractors have an equally powerful incentive to stop contesting a
violation and remediate. As the Guidance notes, ``[d]epending on the
facts of the case, even where multiple factors [weighing against a
satisfactory record] are present, they may be outweighed by mitigating
circumstances.'' Guidance, section III(B)(2). Thus, a prospective
contractor with Labor Law violations that is planning to bid on future
contracts may be best served by considering how to remediate and
resolve violations, not by contesting them.
The Department also received a comment from the Equal Employment
Advisory Council (EEAC) that questioned the manner in which the
Proposed Guidance treated final orders. The EEAC agreed that final
orders generally should be given more weight, but argued that this is
not appropriate when the final order only involves ``minor or technical
violations.''
The Department declines to modify the Guidance in response to this
comment. In general, the question of whether a violation is ``minor''
or ``technical'' is addressed by the classification of violation as
serious, repeated, willful, and/or pervasive. If a violation is not
classified as serious, repeated, willful, or pervasive, then it is not
factored into the ultimate analysis and advice--whether or not it has
been the subject of a final order. Moreover, even where a violation is
classified as serious, repeated willful, or pervasive and has also been
the subject of a final order, it will not necessarily result in a
finding that the contractor has an unsatisfactory record of Labor Law
compliance. As explained above, the assessment process requires
consideration of the totality of circumstances, including any
mitigating factors. Thus, while a final order may provide additional
weight against a finding of a satisfactory record in a given case, the
contractor's good-faith arguments and remediation of the violation may
weigh even more heavily in the other direction. The Department believes
that these processes for considering the totality of the circumstances
are sufficient to take into account any argument that a particular
violation or violations was ``minor'' or ``technical.''
Violations for Which Injunctive Relief is Granted
As explained above in section III(A)(1)(b) of this section-by-
section analysis, the Department has determined that the granting of
injunctive relief by a court is better considered as part of the
weighing process than as a criterion for a serious violation. This
means that the fact that injunctive relief has been granted is only
relevant during an ALCA's assessment process if the violation at issue
is already classified as serious, repeated, willful, and/or pervasive.
If the violation is so classified, then the fact that injunctive relief
was granted as part of the remedy for the violation is a factor that
will weigh against a satisfactory record of Labor Law compliance.
As discussed above, taking injunctive relief into consideration in
this manner is responsive to concerns that it would be overinclusive as
a criterion for a serious violation--and it still appropriately values
the fact that courts rarely grant either preliminary or permanent
injunctions and require a showing of compelling circumstances,
including irreparable harm to workers and a threat to the public
interest. Accordingly, where a court grants injunctive relief to remedy
a violation that is already classified as serious, repeated, willful,
and/or pervasive, the ALCA should take this into account as a factor
that increases the significance of that violation to the contractor's
overall record of Labor Law compliance.
Violations of Particular Gravity
The purpose of the ``particular gravity'' factor is to identify
examples of violations that generally have more severe adverse effects
on workers and more potential to disrupt contractor performance, and
thus should receive greater weight in determining whether a labor
compliance agreement is needed or other action is necessary. In the
Proposed Guidance, the Department listed four examples of violations of
particular gravity: ``violations related to the death of an employee;
violations involving a termination of employment for exercising a right
protected under the Labor Laws; violations that detrimentally impact
the working conditions of all or nearly all of the workforce at a
worksite; and violations where the amount of back wages, penalties, and
other damages awarded is greater than $100,000.'' 80 FR 30,574, 30,590.
Several industry commenters criticized this category. In a
representative comment, the EEAC articulated several of these concerns:
[T]he Department's category of violations of ``particular gravity''
is also too broad. Equating every type of retaliation claim with
violations resulting in the death of an employee strains
credibility. Further, including in this category any violation where
the amount of back wages, penalties, and other damages is greater
than $100,000 would include an overrepresentative proportion of
routine administrative merits determinations found by the EEOC . . .
. Finally, the category of violations that ``detrimentally impact
the working conditions of all or nearly all the workforce at a
worksite'' is unclear as the guidance provides no direction as to
what conduct will constitute ``detrimental impact'' of working
conditions.
Other employer groups echoed these concerns.
While unions and worker-advocacy groups generally supported the
definition of ``violations of particular gravity,'' several suggested
that the Department should modify one of the examples in its list of
violations of particular gravity. These commenters proposed broadening
the retaliatory termination example to include interference with any
protected right and clarifying that it includes retaliatory
constructive-discharge situations.
The Department has considered the concerns raised by industry
comments and declines to make any substantive changes to the category
of violations of particular gravity.
First, the Department does not agree that this factor is too broad
because it includes both violations that involve the death of an
employee and violations involving retaliatory termination of an
employee. While the Department agrees that the death of a worker is a
tragedy that cannot be easily compared to other violations, it would be
unreasonable to suggest that other violations are not of a particular
gravity simply because there has been no loss of life. Moreover, the
EEAC's comment misstates the treatment of retaliation in the proposed
guidance. Retaliation can involve many types of adverse action. The
guidance specifies only that violations ``involving a termination of
employment for exercising a right protected under the Labor Laws''
receive greater weight. By this language, the Department did not intend
to suggest (as the EEAC stated) that ``every type of retaliation
claim'' is considered per se to be of particular gravity.
[[Page 58697]]
Second, the Department believes that the Guidance's $100,000
threshold is appropriate, as the amount of damages in a case provides a
practical measure of the extent losses experienced by employees. The
Department does not agree with the argument that such a threshold is
inappropriate because it would include an ``overrepresentative''
proportion of EEOC determinations. The Department believes that it is
misguided to focus on the proportion of decisions that would meet a
monetary test of gravity. Rather, it is appropriate to give additional
weight to those violations that have a severe harmful effect on
workers. In terms of the economic impact on the workforce, $100,000 in
lost wages due to discrimination is just as severe as $100,000 in lost
wages due to a wage-and-hour violation.
Third, the Department considers it appropriate to give greater
weight to those violations that ``detrimentally impact the working
conditions of all or nearly all the workforce at a worksite.'' 80 FR
30574, 30590. When unlawful conduct causes negative impact that is
widespread in scope, additional weight is warranted.
Finally, in response to employee groups' concerns, the Department
believes that it is unnecessary to state explicitly that a retaliation
violation involving a constructive discharge should be considered the
same as a retaliation violation involving a termination. Enforcement
agencies are responsible for finding violations. The enforcement
agencies and adjudicatory tribunals--not ALCAs--decide whether a
constructive discharge amounts to an unlawful termination. The
Department also finds it unnecessary to characterize all violations
involving an interference with protected rights as violations of
particular gravity. The list of violations of particular gravity is not
an exclusive list, and the Department does not intend to limit an
ALCA's ability to describe a violation as one of particular gravity
where the facts of the case merit such a description.
C. Advice Regarding a Contractor's Record of Labor Law Compliance (Step
Three)
In the final Guidance, the Department creates a new subheading for
the discussion of an ALCA's advice to contracting officers and the
relationship of labor compliance agreements to that process. The core
parameters of this process are defined in the FAR rule. The Department
has modified the description of the advice process in the Guidance to
conform to the structure in the rule. The Department received many
comments about this process. Because these comments and the reasons for
changes to the proposed FAR rule are discussed in the preamble to the
final FAR rule, they are not included here.
While the FAR rule governs the advice process, the Department and
its individual enforcement agencies play an important role in
negotiating labor compliance agreements and assisting ALCAs with their
duties. The Order instructs contracting officers to consult with ALCAs
about Labor Law violations and labor compliance agreements during the
preaward responsibility determination and also during the postaward
period when considering whether to take actions such as the exercise of
an option on a contract. Order, section 2(a)(iii), (b)(ii). The Order
directs ALCAs to provide this advice in consultation with the
Department or other relevant enforcement agencies. Id. section
3(d)(ii). As a result, the Department has expanded its discussion of
labor compliance agreements in the final Guidance and addresses
relevant comments below.
Summary of the ``Advice and Analysis'' Component of the Final FAR Rule
The final FAR rule discusses the written advice and analysis that
an ALCA provides to the contracting officer for use in the
responsibility determination. FAR 22.2004-2(b)(3). The rule provides
that ALCAs may make one of several recommendations, including that a
labor compliance agreement is necessary, the appropriate timing for
negotiations of an agreement, and whether notification of the agency
suspending and debarring official is appropriate. Id. Contracting
officers consider advice provided by ALCAs along with advice provided
by other subject matter experts.
The ALCA's advice and analysis must also include the number of
Labor Law violations; their classification as serious, repeated,
willful, and/or pervasive; any mitigating factors or remedial measures;
and any additional information that the ALCA finds to be relevant. FAR
22.2004-2(b)(4). If the ALCA concludes that a labor compliance
agreement or other appropriate action is warranted, then the written
analysis must include a supporting rationale. See id.
Timeframe for ALCA Advice and Analysis
The FAR Council's proposed rule set out a 3-day period for ALCAs to
provide contracting officers with recommendations about the
contractor's record of Labor Law compliance. The Department received
many comments expressing concern that this timeframe is infeasible and
will lead to unfair responsibility determinations. Commenters
representing both employers and employees commented that in some cases
ALCAs will have to review a large amount of information to make their
recommendations. One union, in a representative comment, argued that
while 3 days may be enough in many cases, this timeframe would be too
short when an ALCA's recommendation involves weighing existing labor
compliance agreements; high severity violations; or multiple willful,
pervasive, or repeated violations.
The proposed rule suggested that contracting officers would be
permitted to make a responsibility determination without input from an
ALCA if the ALCA failed to make a recommendation within the 3-day
period. Some employer organizations speculated that the contracting
officer might delay the contract award while waiting for the ALCA
recommendation, regardless of the authority to act independently; or,
if he or she does act independently, the contracting officer might make
a determination inconsistent with other contracting officers,
contracting agencies, or ALCAs.
These comments are addressed in the preamble to the final FAR rule
and therefore are not addressed here. In brief, the final FAR rule
retains the default 3-day period for an ALCA to provide advice. See FAR
22.2004-2(b)(2)(i). It also retains the possibility for the contracting
officer to provide the ALCA with ``another time period'' for submitting
the advice. See id. And it retains the requirement that if the
contracting officer has not received timely advice, the contracting
officer must proceed with the responsibility determination using
available information and business judgment. See id. 22.2004-
2(b)(5)(iii).
De Facto Debarment
Members of Congress and industry advocates also expressed concern
that the short timeframe for ALCA advice may lead to ``de facto''
debarment of contractors that have been subject to a prior
nonresponsibility determination. ``De facto debarment occurs when a
contractor has, for all practical purposes, been suspended or
blacklisted from working with a government agency without due process,
namely, adequate notice and a meaningful hearing.'' Phillips v. Mabus,
894 F.Supp.2d 71, 81 (D.D.C.2012). These commenters suggested that
contracting officers might try to save time and effort by improperly
following earlier determinations without conducting their own
assessments. This, the commenters
[[Page 58698]]
suggested, would result in effectively ``blacklisting'' certain
companies from Federal contracting.
De facto debarment may occur where a contracting agency effectively
avoids the due process requirements of a debarment hearing by instead
repeatedly finding a contractor nonresponsible and denying individual
contracts based on one initial nonresponsibility determination. See
generally Old Dominion Dairy Prods., Inc. v. Sec'y of Def., 631 F.2d
953 (D.C. Cir. 1980). A single nonresponsibility determination is
insufficient to establish a de facto debarment. Redondo-Borges v. U.S.
Dep't of Hous. & Urban Dev., 421 F.3d 1, 9 (1st Cir. 2005). However,
because an initial nonresponsibility determination based on a lack of
integrity or business ethics must be recorded in the Federal Awardee
Performance and Integrity Information System (FAPIIS), see FAR 9.105-
2(b), and contracting officers must review FAPIIS during each
subsequent responsibility determination, id. 9.104-6(b), a risk of de
facto debarment is inherent in the existing Federal procurement
system--and contracting agencies, OMB, and the Office of Federal
Procurement Policy must continually guard against it.
The Department disagrees with the commenters that the Order and the
related structure of the FAR rule present an unreasonable risk of de
facto debarment. The Department agrees that it would be inappropriate
for an ALCA to base his or her advice and analysis solely on a prior
analysis of a contractor's Labor Law compliance record. However, the
FAR requires contracting officers--with the assistance of ALCAs--to
make independent decisions in every case based on the information
provided by contractors during the respective solicitation process. See
generally FAR 22.2004-2.
Circumstances Warranting Negotiation of a Labor Compliance Agreement
The Department received several comments that the proposed rule and
Proposed Guidance did not clearly specify when an ALCA and a
contracting officer will require a contractor to negotiate a labor
compliance agreement. One employer organization argued that determining
whether an agreement is necessary or sufficient calls for subjective
decisions by ALCAs. The organization also expressed concern that labor
unions might use labor compliance agreements to pressure employers
while negotiating neutrality or collective bargaining agreements.
Numerous worker-advocacy organizations commented that a labor
compliance agreement should be required as a condition of receiving a
contract, especially if the employer has ``violations of particular
concern,'' as they are described in the Proposed Guidance. Several
commenters proposed that a labor compliance agreement should always be
required when a contractor violates the Labor Laws during the
performance of a Federal contract, unless the ALCA determines that the
violation is minor, old, or unlikely to recur after a long period of
time.
The Department has carefully considered these comments and has
included additional language discussing when it is appropriate for an
ALCA to recommend that a labor compliance agreement is warranted. See
Guidance, section III(C)(1). A labor compliance agreement may be
warranted where the ALCA has concluded that a contractor has an
unsatisfactory record of Labor Law compliance. Id. section III(C)(1).
This may be the case where the contractor has serious, repeated,
willful, and/or pervasive Labor Law violations that are not outweighed
by mitigating factors--but the ALCA identifies a pattern of conduct or
policies that could be addressed through preventative actions. Where
this is the case, the contractor's record of Labor Law violations
demonstrates a risk to the contracting agency of repeated violations
during contract performance, but these risks may be mitigated through
the implementation of appropriate enhanced compliance measures. A labor
compliance agreement also may be warranted where the contractor
presently has a satisfactory record of Labor Law compliance, but there
are also clear risk factors present, and a labor compliance agreement
would reduce these risk factors and demonstrate steps to maintain Labor
Law compliance during contract performance.
A labor compliance agreement is not needed where a contractor has
no Labor Law violations within the 3-year disclosure period or has no
violations that meet the definitions of serious, repeated, willful, or
pervasive. A labor compliance agreement may also not be needed where
the contractor does have violations that meet the definitions of
serious, repeated, willful, or pervasive, but under the totality of the
circumstances the existence of the violations is outweighed by
mitigating factors or other relevant information.
Finally, there are circumstances in which a contractor may have an
unsatisfactory record of Labor Law compliance, but a labor compliance
agreement is not warranted--and instead the agency suspending and
debarring official should be notified. This is the case where the
contractor has serious, repeated, willful, and/or pervasive Labor Law
violations that are not outweighed by mitigating factors--and, in
addition, there are indications that a labor compliance agreement would
not be successful in reducing the risk of future noncompliance. The
final Guidance contains examples that illustrate when this may be the
case.
However, the Department disagrees with the commenters--both
industry and worker-advocacy groups--that argued that the final
Guidance should further limit the discretion of contracting officers
and ALCAs. Contracting officers and ALCAs must have the ability to
review all relevant facts concerning Labor Law violations and
mitigating factors, and to make determinations as to when agreements
are appropriate. As discussed above, ALCAs and contracting officers are
provided with robust parameters for making this underlying
determination--from the FAR and the Guidance, and also through
consultation with the enforcement agencies.
Moreover, the Department specifically declines to adopt the
employee advocate suggestion that a labor compliance agreement is
always warranted where a contractor has a ``violation of particular
concern.'' As discussed above in section III(B) (Weighing Labor Law
violations and mitigating factors) of this section-by-section analysis,
the Department has clarified that it did not intend for ALCAs to make
specific findings that violations are ``violations of particular
concern.'' Rather, the analysis requires a weighing process, where
certain factors will weigh in favor of an overall conclusion that a
contractor has a satisfactory record of Labor Law compliance, and
others will weigh against. Thus, it is not appropriate to tie advice
about the need for a labor compliance agreement to existence of any one
of these factors.
Negotiation of a Labor Compliance Agreement
The Department notes that some commenters may have incorrectly
understood that ALCAs or contracting officers would negotiate labor
compliance agreements directly with contractors. The final FAR rule and
the final Guidance clarify that it is enforcement agencies--not ALCAs
or contracting officers--who negotiate labor compliance agreements. The
Guidance provides additional detail on the roles and duties of each of
these
[[Page 58699]]
actors--ALCAs, contracting officers, and enforcement agencies--with
regard to determining the need for and negotiation of labor compliance
agreements.
The ALCA conducts a holistic review of the circumstances
surrounding the contractor's Labor Law violations, including any
mitigating factors. Guidance, sections III(A) (classification step),
III(B) (weighing step). If the ALCA concludes that a contractor has an
unsatisfactory record of Labor Law compliance, the ALCA will consider
whether the negotiation of a labor compliance agreement may be
warranted. After that, the ALCA produces a written advice and analysis
for the contracting officer. Id. section III(C) (advice and analysis
step).
If the ALCA assessment indicates a labor compliance agreement is
warranted, the contracting officer provides written notice to the
contractor. FAR 22.2004-2(b)(7). The notice includes the name of the
enforcement agency with which the contractor should confer regarding
the negotiation of the agreement. Id. The contractor and the
enforcement agency may then initiate negotiations. Any resulting labor
compliance agreement will be an agreement between that enforcement
agency and the contractor.
Labor Compliance Agreements as a Mitigating Factor
In its discussion of remediation as a mitigating factor, the
Proposed Guidance stated that enhanced settlement agreements and labor
compliance agreements between a contractor and an enforcement agency
represent important ways to mitigate the weight of a Labor Law
violation. The Proposed Guidance noted that entering into a labor
compliance agreement indicates that the contractor recognizes the
importance that the Federal Government places on compliance with the
Labor Laws.
Industry commenters criticized how the Proposed Guidance addressed
the relationship between mitigating factors and labor compliance
agreements. Several stated that requiring such agreements raised due
process and fairness concerns. They asserted that a contractor may feel
pressured to negotiate or sign a labor compliance agreement and forgo a
challenge to a nonfinal administrative merits determination in order to
receive a pending contract. Several employer organizations argued that
labor compliance agreements would unfairly penalize contractors by
subjecting them to multiple rounds of remedial requirements in response
to the same underlying conduct.
The Department declines to change the Guidance in response to the
criticisms discussed above. The Department notes that considering labor
compliance agreements in the mitigating factor analysis is consistent
with the Order and the FAR rule. See Order, section 2(a)(ii); FAR
22.2004-2(b)(3)-(4). Labor compliance agreements may contain remedial
measures (such as the payment of back wages) or enhanced compliance
measures (such as the implementation of new safety-and-health
programs). When implemented outside of the context of a labor
compliance agreement, these types of measures are individually
mitigating factors. It is therefore reasonable to consider a labor
compliance agreement containing such measures also to be a mitigating
factor.
The Department disagrees that labor compliance agreements raise due
process concerns. As the Department has clarified in the final
Guidance, in appropriate circumstances contractors may enter into labor
compliance agreements while at the same time continuing to contest an
underlying Labor Law violation. And, if a contractor and a contracting
officer disagree about whether a labor compliance agreement is
necessary and the contractor refuses to negotiate an agreement, the
existing procurement process provides ample opportunity to contest any
resulting nonresponsibility determination. The contractor can bring a
bid protest and receive a hearing and judicial review of the agency
action.
The Department also disagrees with the argument that labor
compliance agreements will unfairly penalize contractors. The purpose
of a labor compliance agreement is not to penalize a contractor for
past violations; it is to protect the Federal Government's interest in
economy and efficiency in the prospective contract at issue. As
discussed above, Federal agencies have a duty to contract only with
responsible sources, and a track record of Labor Law violations raises
serious questions about whether a contractor can be trusted to comply
with Labor Laws--or with other non-labor laws--during the course of
contract performance. Labor compliance agreements provide contractors
that are otherwise at risk of being found nonresponsible with an
additional opportunity to take the steps necessary to assure
contracting officers that their past noncompliance will not be repeated
during contract performance. Thus, they are properly understood as an
opportunity for contractors, not a penalty.
Duration of a Labor Compliance Agreement
One employer organization commented that contractors needed more
information about the procedural aspects of labor compliance
agreements. One question this commenter raised is how long labor
compliance agreements will last.
The Department declines to specify a set duration for labor
compliance agreements. In general, the duration of an agreement will be
the subject of negotiations between the contractor and the enforcement
agency--and the enforcement agency will take a position regarding the
appropriate length of agreement based on the facts and circumstances of
the case and that agency's current practices in negotiating enhanced
compliance agreements. However, the extent to which a labor compliance
agreement extends beyond the expected duration of the contract will not
be taken into consideration in determining a contractor's
responsibility or in other decisions related to the contract at issue.
Elements of a Labor Compliance Agreement
Several unions and worker groups proposed that the Guidance should
require that all labor compliance agreements contain a prescribed list
of elements. Suggestions included (1) remedies for any labor law
violation; (2) notice and training for workers about the labor
compliance agreement and instructions for reporting violations; (3) a
plan to prevent future violations; (4) an agreement that the contractor
will self-report any alleged violations of the agreement; and (5)
enforceable safeguards to prevent employer retaliation against
employees who lodge complaints.
The Department does not agree that it should prescribe the content
of labor compliance agreements. The enforcement agencies, which will
negotiate labor compliance agreements, will determine the terms of each
labor compliance agreement on a case-by-case basis, taking into
consideration the totality of the circumstances.
Remedial Measures To Be Included in Labor Compliance Agreements
Labor union and worker-advocacy commenters emphasized that labor
compliance agreements should require employers to take remedial actions
that would prevent future violations. In contrast, numerous employer
representatives commented that labor compliance agreements should not
impose ``enhanced compliance''
[[Page 58700]]
measures--or remedial measures that go beyond basic compliance with the
requirements of the labor law that has been violated. For example, one
employer organization raised a question about whether an agreement
would apply only to the business unit or location with the alleged
violation--or would apply company-wide. Other commenters raised similar
concerns that labor compliance agreements might impose remedial
measures that are broader than remedies that could be imposed by courts
or enforcement agencies under the Federal labor laws.
Another employer organization expressed a related point about what
remedial actions can be expected in labor compliance agreements:
While we agree that any contractor practices that go above and
beyond the requirements of the law may constitute evidence of
remediation or otherwise serve as a mitigating factor, these
provisions should not be read so as to require remediation efforts
that exceed the law's requirement simply to get ``full credit'' for
remediation.
The Department agrees with the commenters that assert that labor
compliance agreements are not limited to providing compensation for
individual employees, abating a hazard, or changing an unlawful policy.
Rather, agreements may (and often should) contain additional provisions
that are directed at ensuring future compliance with the law. The Order
expressly requires that the contracting officer, when making a
responsibility determination, must give a contractor with a violation
the opportunity to disclose ``any agreements entered into with an
enforcement agency.'' Order, section 2(a)(ii). The ALCA then must
advise the contracting officer about the need for an agreement to
implement remedial measures or steps to ``avoid further violations.''
Id.
The requirement that contractors take actions to avoid future
violations is not new in the Federal contracting process. Because
contracting with the Federal Government is a privilege and not a right,
contracting agencies can generally require that contractors meet
specific conditions in order to receive a contract award. Accordingly,
Federal contractors already have a duty to implement programs intended
to prevent some labor law violations. For example, FAR 36.513 Accident
Prevention requires a contractor to submit a written safety-and-health
plan for identifying and controlling hazards where work is of a
hazardous nature. Similarly, under current practice, suspending and
debarring officials routinely negotiate ``administrative agreements''
that contain exactly the sort of enhanced compliance measures about
which the industry commenters raised concerns.\76\ By entering into a
labor compliance agreement, a contractor agrees to take specific
actions designed to achieve and maintain compliance during the contract
period; this is not any different than administrative agreements.
---------------------------------------------------------------------------
\76\ See Office of Management and Budget, M-06-26, ``Suspension
and Debarment, Administrative Agreements, and Compelling Reason
Determinations'' (2006), available at https://www.whitehouse.gov/sites/default/files/omb/assets/omb/memoranda/fy2006/m06-26.pdf
(``Agencies sometimes enter into administrative agreements . . . as
an alternative to suspension or debarment.''); Interagency
Suspension & Debarment Comm., ``Report by the Interagency Suspension
And Debarment Committee on Federal Agency Suspension and Debarment
Activities for FY 2012 and FY 2013,'' 10 (2014) (``[T]he use of
administrative agreements increase the Government's access to
responsible sources and, thereby, promotes competition in the
Federal marketplace.''); see also Jennifer S. Zucker and Joseph
Fratarcangeli, ``Administrative Compliance Agreements: An Effective
Tool in the Suspension and Debarment Process,'' The Army Lawyer
(Feb. 2005), at 19-24 (describing the content of administrative
agreements negotiated between the Army and contractors).
---------------------------------------------------------------------------
In addition, as commenters' references to ``enhanced compliance
agreements'' indicate, the negotiation of preventative measures as part
of a settlement is also a traditional aspect of both criminal and civil
law enforcement--of the Labor Laws and otherwise. Enforcement agencies
such as OSHA, WHD, and OFCCP currently negotiate enhanced compliance
agreements, including enterprise-wide agreements, as part of the
settlement of enforcement actions under their respective Labor Laws. In
sum, the inclusion of preventative measures in labor compliance
agreements--which are negotiated with these enforcement agencies--is a
reasonable and well-established mechanism for enforcing the existing
law and protecting the integrity of the Federal contracting process.
Relationship of Labor Compliance Agreement Terms to the Procurement
Contract
Several unions and worker-advocacy organizations proposed that the
terms of a labor compliance agreement should be incorporated into the
procurement contract. One commenter stated that the terms of labor
compliance agreements should operate as mandatory contract clauses that
are enforceable, whether or not expressly included in the contract
language. Many worker-advocacy organizations argued that labor
compliance agreements should provide for specific penalties, including
contract termination, if the contractor fails to implement agreed-upon
remedial measures during the contract period. Employer groups also
suggested that the Guidance delineate the consequences of violating a
labor compliance agreement.
The Department notes that final FAR rule does include reference to
consequences for the breach of a labor compliance agreement. Breach of
labor compliance agreement during the performance of a contract may
justify the exercise of contract remedies, such electing not to
exercise an option, terminating the contract, or notifying the agency
suspending and debarring official. See FAR 22.2004-3(b)(3)(v)(C),
(b)(4)(i)(B)(2)-(4). Additionally, where a prospective contractor has
previously breached a labor compliance agreement, this may justify and
ALCA's recommendation that the contracting officer could find that the
contractor has an unsatisfactory record of integrity and business
ethics and that the suspending and debarring official should be
notified. See id. 22.2004-3(b)(3)(v); see also Guidance, section
III(C)(1)(e).
Timing of Negotiation
Certain unions and employee advocacy organizations argued that if
the contracting officer determines that a labor compliance agreement is
necessary in order to establish that an employer can be considered a
responsible contractor, then the agreement must be fully negotiated
prior to the award of the contract. These commenters proposed that
merely engaging in good-faith negotiations should not be considered
sufficient to overcome a record of Labor Law violations. Rather, they
suggested that a finalized enforceable remedial agreement should be
required in order to permit a finding of contractor responsibility.
SEIU proposed in the alternative that a labor compliance agreement
should be executed within 2 months of the contract award and if the
contractor fails to comply, ``payments due the contractor under the
contract should be withheld until [a labor compliance agreement] is
executed.''
The Department believes these comments address issues outside the
scope of the Guidance and directs commenters to the preamble to the
final FAR rule. However, the Department notes that, as discussed above,
the final FAR rule provides that a contracting officer may require the
contractor to commit, prior to award, to negotiate a labor compliance
agreement ``in good faith within a reasonable period of time.'' FAR
22.2004-2(b)(7)(ii). The contracting officer may also require that the
contractor negotiate and execute an agreement prior to award. See id.
22.2004-2(b)(7)(iii). The ALCA is also required, during the performance
of a
[[Page 58701]]
contract, to report to the contracting officer whether the contractor
is continuing to negotiate a labor compliance agreement or whether the
contractor is adhering to an agreement that has been established. Id.
22.2004-3(b)(3)(i). The contracting officer then uses this information
to determine whether to, among other actions, elect to exercise an
option on the contract. Id. 22.2004-3(b)(4)(i).
Relationship Between Labor Compliance Agreements and Settlement
Agreements for Violations Under Litigation
Several industry commenters raised concerns about the relationship
between labor compliance agreements and litigation-specific settlements
for violations. One commenter stated that labor compliance agreements
could overlap with and contradict provisions of settlement agreements
that are already in place or administrative agreements reached as part
of suspension and debarment proceedings.
One industry group argued that the negotiation process for labor
compliance agreements could conflict with the Title VII conciliation
process, citing a recent Supreme Court decision, Mach Mining, LLC v.
EEOC, 135 S. Ct. 1645 (2015). Mach Mining addressed a statutory
provision that requires EEOC to conciliate with employers following a
reasonable cause determination. This commenter argued that the Order
would remove the determination of good faith negotiation from Federal
courts and place it in the hands of ALCAs or contracting officers.
The Department believes that concerns about labor compliance
agreements conflicting with existing settlements are unwarranted.
Contractors are encouraged to disclose information about existing
settlements as a potential mitigating factor in the weighing process.
In determining whether a labor compliance agreement is necessary, the
ALCA will consider any preexisting settlement agreement--and recommend
a labor compliance agreement only where the existing settlement does
not include measures to prevent future violations.
In addition, the Department notes that a labor compliance agreement
is an agreement between a contractor and an enforcement agency.
Enforcement agencies will know if they previously entered into
agreements with the contractor and can assure that any labor compliance
agreement does not conflict with prior agreements.
Finally, the Department disagrees with the commenter's
interpretation of Mach Mining. Mach Mining does not apply here because
a labor compliance agreement is not a conciliation agreement, nor does
it replace the EEOC's efforts to conciliate. Negotiation of a labor
compliance agreement is separate and distinct from the conciliation
process under Title VII.
Public Access to Labor Compliance Agreements, Recommendations, and
Responsibility Determinations
Union commenters proposed that the Guidance specify that ALCA
advice and analysis must be included in a public database, and that
contracting officers' responsibility determinations, along with the
reasons on which they are based, also must be made accessible to the
public. Several also proposed that a contracting officer should be
required to justify in writing if he or she makes a decision not to
adopt an ALCA's recommendation that a labor compliance agreement be
negotiated, and that this explanation should be made available to the
public.
Several of these commenters also proposed that labor compliance
agreements, as well as the contracting officers' responsibility
determinations and ALCA recommendations, should be public documents.
They stated that labor compliance agreements should be public so that
employees and other commenters can monitor whether contractors meet
their obligations under the terms of the agreements.
The Department declines to adopt the public-disclosure proposal.
Mechanisms for public access to information on government contracts
already exist, including the Freedom of Information Act (FOIA),
USAspending.gov, and the Federal Awardee Performance and Integrity
Information System (FAPIIS)--a government database that tracks
contractor misconduct and performance. FAPIIS will indicate where a
contractor has entered into a labor compliance agreement. In addition,
the enforcement agencies that negotiate labor compliance agreements
have the discretion to make the agreements themselves publicly
available.
However, the Department notes that the final FAR rule does require
the contracting officer to document in the contract file how he or she
has taken into account an ALCA's recommendation and analysis--including
whether a labor compliance agreements is warranted--in making the
responsibility determination for the award. See FAR 22.2004-
2(b)(5)(ii). In addition, the final FAR rule also states that where a
contractor enters into a labor compliance agreement, the entry will be
noted in FAPIIS by the ALCA and the fact that a labor compliance
agreement has been agreed to will be public information. Id. 22.2004-
2(b)(9). The Department has added reference to this procedure in
section II(C)(3) of the Guidance.
Other Criticism of Labor Compliance Agreements
One employer advocate, in a representative comment, stated that the
use of labor compliance agreements forces contractors to defend
themselves in multiple forums on the same issues. Other employer
organizations commented that the use of labor compliance agreements
would deter businesses from seeking Federal contracts because they will
add another layer of negotiation and uncertainty.
The Department has carefully considered these comments but does not
modify the Guidance in response. Labor compliance agreements will
enable contractors with a significant record of Labor Law violations,
who might not otherwise be considered responsible, to obtain government
contracts. Thus, as discussed above, labor compliance agreements are
properly viewed as expanding opportunity and not imposing additional
burdens. With regard to the question of competition, the commenters
have not provided any objective evidence to support their statement
that the use of labor compliance agreements would deter, rather than
encourage, participation in Federal contracting. And, the Department
also received comments from employee representatives stating that the
Order's requirement that remedial measures be put in place through
labor compliance agreements will enhance fair competition. These
commenters argued that law-abiding contractors are currently deterred
from seeking government business because they believe they will be
underbid by unscrupulous contractors. The Department believes that the
final FAR rule's inclusion of a structure for labor compliance
agreements can only benefit competition by allowing contractors that
might otherwise be barred from contracting--either through an
individual nonresponsibility determination, suspension, or debarment--a
path to responsibility instead.
IV. Postaward Disclosure and Assessment of Labor Law Violations
The Order requires contractors that made initial preaward
disclosures of Labor Law violation information to update that
information semiannually during performance of the covered procurement
contract. Order, section 2(b). Where new Labor Law violation
[[Page 58702]]
information is disclosed or otherwise brought to the attention of the
contracting officer, the Order requires the contracting officer to
consider whether action is necessary--including agreements requiring
appropriate remedial measures or remedies such as decisions not to
exercise an option on a contract, contract termination, or referral to
the agency suspending and debarring official. Id. section 2(b)(ii). The
Proposed Guidance referenced these provisions of the Order, and
explained that postaward disclosures should include both (a) any new
Labor Law decisions rendered since the last disclosure and (b) updates
to previously disclosed information. 80 FR 30574, 30581.
Disclosure Update Requirements
The Department received a number of comments discussing the Order's
postaward disclosure requirements. In general, employee-advocacy
organizations approved of the requirements and urged the Department to
strengthen them--particularly with regard to the consequences of
violating a labor compliance agreement. In contrast, several industry
commenters expressed concern that the semiannual, postaward disclosure
requirement is unduly burdensome. These commenters suggested
elimination of the requirement entirely.
The Department does not amend the Guidance to eliminate the
postaward disclosure requirement. The final FAR rule has implemented
this requirement in section 22.2004-3 of the FAR, and created a
contract clause that incorporates these requirements into covered
contracts, see id. 55.222-59(b). The Department agrees that this
requirement is appropriate, because the Order expressly mandates
postaward disclosures. See Order, section 2(b).
The Department also received multiple comments from industry groups
requesting clarification about the timing of postaward disclosure and
whether each contract would have its own disclosure cycle based on the
date of each award. Some of these commenters asserted that companies
with multiple Federal contracts would have an onerous reporting burden
because the Order and the proposals will require such companies to
constantly make disclosures. They proposed alternative ways to schedule
their disclosure requirements; in particular, they suggested that the
Department establish a unified, fixed-date disclosure schedule as
opposed to reporting on the anniversary of each contract award.
The Department notes that the timing of postaward disclosures is a
question that is resolved in the FAR rule. In response to similar
comments, the final FAR rule provides the flexibility requested by
commenters, allowing the contractor to use any date that it chooses
before the six-month anniversary date of the award. FAR 22.2004-
3(a)(2). The Department has included this clarified language in the
Guidance.
Postaward Assessment of Labor Law Violations
Some industry commenters expressed concern that it would be
disruptive to find a contractor nonresponsible in the middle of the
performance of a contract based on a violation that is disclosed
postaward. Similarly, other industry commenters were critical of using
postaward violations as a basis for terminating a contract that was
otherwise being properly and timely performed. These commenters argued
that such information should only be used in connection with a
contracting officer's consideration of whether to exercise an option to
extend the contract.
The consideration of appropriate postaward actions is within the
jurisdiction of the FAR Council, and the Department has deferred to the
treatment of these issues in the final FAR rule. Under the final rule,
the ALCA will follow a similar assessment process for postaward
disclosures as for preaward disclosures. See FAR 22.2004-3(b)(3). The
ALCA assesses the information disclosed and provides analysis and
advice to the contracting officer regarding, among other questions,
whether violations should be considered serious, repeated, willful,
and/or pervasive, see id. 22.2004-3(b)(3)(i); and whether the
contractor is adequately adhering to any labor compliance agreements,
see id. 22.2004-3(b)(3)(v)(C). The contracting officer may then take no
action and continue the contract, or may exercise one or more contract
remedies under existing FAR regulations and procedures. FAR 22.2004-
3(b)(4).
The Department believes that the FAR Council's rule appropriately
implements the plain language of the Order requiring postaward
consideration of the specified contract remedies. The Order expressly
includes various appropriate remedies, including contract termination.
Order, section 2(b)(ii). The Department notes that the Order and the
final rule do not deviate in any significant way from what the FAR
otherwise requires when a contracting officer receives information
during contract performance that implicates a contractor's
responsibility.
V. Subcontractor Responsibility
The Department has re-organized the discussions of subcontractor
responsibility that appeared in several locations of the Proposed
Guidance into a new section V of the final Guidance. The Department
received several comments about the extent of subcontracts covered by
the Order, the method of subcontractor disclosure, and the assessment
by prime contractors of their subcontractors' responsibility. These
comments are discussed in turn below.
Covered Subcontracts
The Proposed Guidance described ``covered subcontracts'' as
including subcontracts for commercial items, but, as prescribed by the
Order, excluding those for commercially available off-the-shelf (COTS)
items. As discussed above in section II(A) of this section-by-section
analysis, one industry commenter suggested that all commercial item
contracts--and especially commercial item subcontracts--should be
excluded from the Order's disclosure requirements. The commenter
asserted that there is no basis for distinguishing between contracts
for COTS items and contracts for commercial items.\77\ In the
alternative, the commenter suggested that coverage of commercial item
subcontracts be delayed 5 years.
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\77\ Another commenter, Ogletree Deakins, asked a specific
question about the definition of COTS items. The law firm stated
that a construction company client ``is of the opinion that its
construction materials qualify as COTS items'' and ``seeks
confirmation'' from the Department that this opinion is correct. In
response, the Department notes that Order does not require the
Department to provide guidance regarding the definition of COTS
items. The Department, however, interprets the use of ``commercially
available off-the-shelf items'' in the Order as subject to the
definition of that term in the FAR. See Order, section 2(a)(iv); FAR
2.101.
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The Department declines to adopt the commenter's suggestions. As
noted above, contract coverage is within the jurisdiction of the FAR
Council, and the final FAR rule maintains the inclusion of ``commercial
item'' subcontracts as proposed. See FAR 52.244-6. The final FAR rule
also did not adopt the commenter's alternative request that coverage of
commercial item subcontracts be delayed 5 years. However, in
recognition of the additional complexity of the prime contractors'
determination of subcontractor responsibility, the FAR Council has
delayed implementation of all of the subcontractor disclosure and
assessment requirements in the Order for an additional year beyond the
[[Page 58703]]
effective date of the final rule. See FAR 22.2007(b).
Subcontractor Disclosures
The Proposed Guidance contemplated that subcontractors would
disclose Labor Law violations to prime contractors for assessment. See
80 FR 30577. However, the Proposed Guidance also noted that ``the FAR
Council is considering allowing contractors to direct their
subcontractors to report violations to the Department, which would then
assess the violations'' (instead of contractors). Id. n.9.
Various industry commenters raised concerns about the original
subcontractor disclosure and assessment provision in the Proposed
Guidance. In a representative form comment, one commenter stated that
the task of assessing subcontractor responsibility under the Order
would be overly burdensome for prime contractors, who may have up to 30
subcontractors for a multimillion dollar contract. Another commenter,
SAIC, raised a concern with the structure by which subcontractors would
give violation information to prime contractors on the grounds that the
subcontractor and the prime may be competitors on the next contract,
and ``competitors should not have access to sensitive information about
one another.''
In contrast, another commenter objected to the structure of the
proposed alternative. In a comment made to the FAR Council on the
proposed FAR rule, the commenter questioned whether there might be
conflicts of interest if the Department is given the authority to
assess subcontractor violations. The commenter suggested that a
conflict could arise because the Department would often be charged with
classifying and assessing the weight of violations that may be under
active enforcement or litigation by enforcement agencies within the
Department; presumably the concern would be that the Department could
tip the scales in its own ongoing litigation by providing a more
negative assessment of the subcontractor's record than it might
otherwise do in order to force the contractor into settling.
After carefully considering these and other similar comments, the
FAR Council decided to adopt the proposed alternative structure under
which subcontractors will be able to make detailed disclosures to the
Department instead of to prime contractors directly. See FAR 52.222-
59(c)(3)(ii). Pursuant to Order (as amended), the FAR Council has the
express authority to designate the entity to which subcontractors
submit disclosure information.
Under the final FAR rule, upon receiving a subcontractor's
disclosure, the Department will provide advice that the subcontractor
provides to the contractor for the contractor's use in the determining
the subcontractor's responsibility. See FAR 52.222-59(c)(4).
Ultimately, however, the Order does not change the underlying principle
in the FAR that it is the prime contractor (and not the Department)
that has the duty to make a determination that its subcontractors are
responsible sources. See id. 9.104-1.
The FAR Council and the Department have carefully considered the
concern that the structure of the subcontractor responsibility
assessment would create a conflict of interest, and we have concluded
that the proposed structure is appropriate. ALCA training will include
material that addresses prevention of such conflicts of interest. The
Guidance clarifies that in assessing violations, the Department will
apply the same Guidance language that ALCAs apply in classifying and
weighing violations and that any Labor Law decisions from an
enforcement agency will be evaluated objectively and without regard for
the enforcement agency's litigation interests. See Guidance, section
V(B). As the FAR Council notes in its response to this issue,
administrative decision makers enjoy a presumption of honesty and
integrity. See Withrow v. Larkin, 421 U.S. 35, 47 (1975). Moreover, if
the subcontractor disagrees with the Department about the assessment,
it may provide an explanation of its disagreement, along with the
relevant information, to the contractor, FAR 52.222-59(c)(4)(ii)(C)(3),
and in this situation the contractor may award the subcontract
notwithstanding the Department's negative assessment, id. 52.222-
59(c)(5).
In sum, the Department has tracked the FAR rule in the final
Guidance. The Department believes that the FAR Council's modification
of the subcontractor responsibility structure will address the above-
described concerns that contractors (and especially small business
contractors) would find it challenging to assess subcontractors'
violations. This change will also ensure a greater degree of expertise
and consistency in assessing subcontractors' Labor Law violations.
VI. Preassessment
The Proposed Guidance noted that the Department will be available
to consult with contractors to assist them in fulfilling their
obligations under the Order, and, specifically, that contractors would
have the opportunity to receive early guidance before bidding on a
contract. In this ``preassessment,'' contractors would receive the
Department's advice as to ``whether any of their violations of the
labor laws are potentially problematic, as well as the opportunity to
remedy any problems.'' 80 FR 30575 n.7.
The Department received few comments specifically addressing
preassessment. However, several commenters stated that contracting
agencies must provide enough time for ALCAs to assess the information
disclosed regarding violations, mitigating circumstances, and remedial
measures. Many commenters stated that the 3-day timeframe for ALCAs to
give analysis and advice to contracting officers is insufficient and
will cause delays in decision-making. The Department believes that the
preassessment process will help avoid such delays. With regard to
subcontractor preassessment, AGC stated in its comment that ``pre-
approving national subcontractors may be helpful,'' while noting that
there are disadvantages to limiting the pool of acceptable
subcontractors to those that have been pre-approved.
After considering these comments, the Department has decided that
there will be a preassessment process whereby contractors may
voluntarily agree to have their record of Labor Law violations assessed
by the Department. The preassessment process does not limit the pool of
contractors in the manner that AGC suggested could be disadvantageous.
Rather, preassessment will provide contractors with early information
that their record of Labor Law compliance is satisfactory--and, if that
is not the case, with information about how to address any issues
before bidding on a contract. The preassessment process does not
circumvent or replace the structured preaward disclosure and assessment
process required by the Order.
The Guidance now clarifies that the Department's advice during
preassessment is similar to the analysis that ALCA's provide to
contracting officers during the preaward assessment process--including
``advice regarding whether any of the disclosed violations are serious,
repeated, willful, and/or pervasive; and regarding whether a labor
compliance agreement is warranted.'' Guidance, section VI. And, it
clarifies that if a contractor whose record have been assessed by the
Department subsequently submits a bid, and the contracting officer
initiates a responsibility determination of the contractor, the
contracting officer and the ALCA may rely on the Department's
assessment that the contractor has a
[[Page 58704]]
satisfactory record of Labor Law compliance unless additional Labor Law
violations have been disclosed.
VII. Paycheck Transparency
Section VII of the Guidance assists agencies in interpreting the
paycheck transparency provisions of the Order and the FAR rule. The
purpose of these provisions is to increase transparency in compensation
information and employment status, which will enhance workers'
awareness of their rights, promote greater employer compliance with
Labor Laws, and thereby increase economy and efficiency in government
contracting.
A. Wage Statement Provisions
Section 5(a) of the Order requires covered contractors, including
subcontractors, to provide ``all individuals performing work'' under
the contract for whom the contractor must maintain wage records under
the FLSA, the DBA, the SCA, or equivalent State laws with a
``document'' each pay period containing ``information concerning that
individual's hours worked, overtime hours, pay, and any additions made
to or deductions made from pay.'' As the Department noted in the
Proposed Guidance, this means that a wage statement must be provided to
every worker subject to the FLSA, all laborers and mechanics subject to
the DBA, and all service employees covered by the SCA--regardless of
the contractor's classification of the worker as an employee or
independent contractor. See 80 FR 30591.
In the Proposed Guidance, the Department interpreted the term
``pay'' in the Order to mean the total or ``gross pay'' that is due the
worker for the pay period. 80 FR 30591. The Proposed Guidance noted
that additions to gross pay may include bonuses, awards, and shift
differentials, and that deductions from gross pay may include
withholding for taxes and for employee contributions to health
insurance premiums or retirement accounts. 80 FR 30591-30592.
The Order requires that the wage statement must be issued every pay
period and contain the total number of hours worked in the pay period
and any overtime hours worked, among other information. Order, section
5(a). In those cases where the wage statement is not provided weekly
and is instead provided bi-weekly or semi-monthly, the FAR Council's
proposed rule provided that the hours worked and overtime hours
detailed in the wage statement be broken down to correspond to the
period for which overtime is actually calculated and paid (which will
almost always be weekly). 80 FR 30571.
The Proposed Guidance suggested that if the contractor regularly
provides documents to workers electronically, the wage statement may be
provided electronically if the worker can access it through a computer,
device, system, or network provided or made available by the
contractor. 80 FR 30591. The FAR Council proposed the requirement that,
if a significant portion of the contractor's workforce is not fluent in
English, the contractor must provide the wage statements in English and
the language(s) in which the significant portion(s) of the workforce is
fluent. 80 FR 30572.
The Department received many comments regarding the different
aspects of the proposed wage-statement requirements discussed above.
Employee advocates generally supported the Order's wage-statement
provisions.\78\ Employer organizations, on the other hand, commented
that the wage-statement provisions are overly burdensome and in
addition made several specific suggestions and objections. The
Department addresses these comments below.
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\78\ The Department received many comments generally supporting
the paycheck transparency provisions, including more than 1,700
comments submitted by the National Women's Law Center (NWLC).
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1. Rate of Pay
Several unions and employee advocacy organizations suggested that
contractors should be required to include in the wage statement: (a)
The worker's rate of pay, (b) hours and earnings at the basic rate, and
(c) hours and earnings at the overtime rate. In their view, these would
allow ``a worker to fully understand the basis for his or her net
pay.'' They argued that the term ``pay'' in the Order should be defined
to include both the worker's regular rate of pay and the total amount
of pay for the pay period. SEIU noted that several States, including
Alaska, California, New York, and Hawaii, already require rate-of-pay
information in wage statements, ``demonstrating the reasonableness of
this requirement.'' The Midwest Region Foundation for Fair Contracting
and the Foundation for Fair Contracting of Massachusetts suggested that
the wage statement should include the ``overtime rate of pay and hours
calculated,'' reasoning that the ``rate of pay alone is not sufficient
for a worker to calculate his or her overtime hours[.]'' The Center for
American Progress Action Fund (CAPAF) and SEIU also suggested that the
Guidance ``should make clear that the terms used in the paycheck
transparency provisions have the same meaning as they do under the
FLSA.''
In response to similar comments, the FAR Council has included in
its final rule that rate-of-pay is a required element on the wage
statement. See FAR 52.222-60(b)(1)(iii). The Department has modified
the final Guidance accordingly. The Department believes that this
decision accords with the plain text of the Order, which states that
the wage statement must contain the worker's ``pay.'' Order, section
5(a). As the commenters above noted, the term ``pay'' can and should be
defined to include both ``gross pay'' and ``rate of pay.''
The Department believes that a worker's rate of pay is a crucial
piece of information that should appear in the wage statement, because
a worker's knowledge of his or her rate of pay enables the worker to
more easily determine whether all wages due have been paid. Inclusion
of rate of pay in wage statements will therefore reduce the time an
employer spends resolving pay disputes because workers will have
available the information on which his or her pay was determined, and
be able to identify any problems at an earlier date. By aiding in the
early identification of problems, including rate of pay in the wage
statement will help to implement the Order's purpose of reducing
execution delays and avoiding distractions and complications that arise
from Labor Law noncompliance during the course of contract performance.
See Order, section 1. All parties have an interest in ensuring workers
receive their full pay when it is earned--including contractors
themselves, who benefit from fair competition, employee satisfaction,
and reduced liability for damages resulting from unpaid wages.
Also, in most cases, contractors compute gross pay by multiplying
the regular hours worked by the worker's rate of pay and, in overtime
workweeks, by also multiplying the overtime hours worked by time-and-
one-half of the rate of pay. As contractors cannot compute the worker's
earnings without the rate-of-pay information, workers similarly cannot
easily determine how their earnings are computed without inclusion of
the rate-of-pay information in the wage statement.
Moreover, the relevant laws already require that the employer keep
a record of the rate of pay. As one employee-advocacy organization
pointed out, an employer must maintain a record of a non-exempt
employee's rate of pay under the FLSA. See 29 CFR 516.2(a)(6)(i). A
requirement to keep
[[Page 58705]]
rate-of-pay information also applies to SCA-covered contracts, see 29
CFR 4.6(g)(1)(ii), and to DBA-covered contracts, see 29 CFR
5.5(a)(3)(i).\79\ In addition, a number of States currently require the
worker's rate of pay to be included in wage statements.\80\ Contractors
located in one of these States already are including the rate of pay in
the wage statements that they provide. Therefore, including this
information in the wage statement helps to realize the purposes of the
Order with limited burden to contractors.
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\79\ In general, for DBA and SCA, the basic hourly rate listed
in the wage determination is considered the rate of pay that is to
be included in the wage statement. Under the FLSA, the regular
hourly rate of pay is determined by dividing the employee's total
remuneration (except statutory exclusions) by total hours worked in
the workweek. See 29 CFR 778.109.
\80\ States that currently require rate of pay information to be
included in wage statements are: Alaska, California, Colorado,
Hawaii, Kansas, Maryland, Massachusetts, Minnesota, New York, North
Dakota, Pennsylvania, Texas, Vermont, Washington, and Wisconsin.
This list is not the list of ``Substantially Similar Wage Payment
States'' that the Order requires the Department to identify. As
discussed below, whether a State law is substantially similar
requires consideration of all of the required elements in a wage
statement--not simply rate of pay.
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The rate of pay information on the wage statement will most often
be the regular hourly rate of pay. If the worker is not paid by the
hour, the rate of pay information should reflect the basis of pay by
indicating the monetary amount paid on a per-day, per-week, per-piece,
or other basis. See FAR 52.222-60(b)(1)(iii). This information is
required to be kept by the employer for non-exempt employees under the
FLSA, and would allow the worker to recognize any underpayments. See 29
CFR 516.2(a)(6)(i)-(ii), 778.109.
The Department, however, believes that it is not essential for the
overtime rate of pay to be included in the wage statement. For example,
in order to check the accuracy of the wages paid in weeks when overtime
hours are worked, a worker can generally perform the following
calculation: (1) The rate of pay multiplied by 40 hours equals regular
earnings; (2) rate of pay multiplied by 1.5 equals the overtime rate of
pay; (3) overtime rate of pay multiplied by the overtime hours worked
equal overtime earnings; and (4) regular earnings plus overtime
earnings equals gross pay. The inclusion of the overtime rate of pay in
the wage statement would only slightly simplify this calculation for
the worker by eliminating step two. In most situations, once the worker
knows his or her rate of pay, the worker can readily determine what the
overtime pay rate should be by simply multiplying the rate of pay by
time and one half (by a factor of 1.5).
In addition, the FLSA, SCA, and DBA regulations do not require
contractors to keep a record of the overtime pay rate in their payroll
records.\81\ Similarly, with some exceptions, State laws generally do
not require that the overtime rate of pay be included in wage
statements. Therefore, requiring the overtime rate of pay in the wage
statement would be a new burden on contractors and, as discussed above,
having the overtime pay-rate information in the wage statement does not
significantly improve the worker's ability to determine whether the
correct wages were paid.
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\81\ Of the three Federal statutes referenced in section 5(a) of
the Order, only the FLSA requires the payment of overtime; however,
the FLSA recordkeeping regulations do not require the contractor to
maintain overtime rates of pay on payroll records. The FLSA
regulations do require a supplemental record documenting the
overtime pay calculation. See 29 CFR 516.6(a)(2). The DBA and SCA do
not contain an overtime pay provision and, as a result, the
regulations governing these statutes make no reference to listing
overtime rates of pay on payroll records. See 29 CFR 5.5(a)(3)(i)
and 5.32(a) for DBA; 29 CFR 4.6(g) and 4.180 for SCA.
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With regard to SEIU's comment that the Guidance should make clear
that the terms used in the Order's paycheck transparency provision
should be given the same meaning as in the FLSA, the Department agrees
with this comment to the extent the FLSA provides relevant meaning and
context to the terms in the Order's paycheck transparency provisions.
The Department has cited to the FLSA regulations where applicable.
2. Itemizing Additions to and Deductions From Wages
Employee advocates urged the Department to require contractors to
itemize additions to and deductions from wages in the wage statement.
SEIU stated that there should be ``no lump sums for additions or
deductions.'' The AFL-CIO urged the Department to require contractors
to ``itemize the contributions for fringe benefits and identify each
plan or fund to which such contributions are being paid.'' NABTU noted
that a number of States require contractors to itemize in this manner
in the certified payroll records that are filed with the State. The
Indiana-Illinois-Iowa Foundation for Fair Contracting (Foundation for
Fair Contracting) suggested that wage statements required by the Order
should include the hourly fringe benefit rates, the name and address of
each fringe benefit fund, and the plan sponsor and administrator of
each fringe benefit plan, if applicable. Foundation for Fair
Contracting noted that the Illinois Prevailing Wage Act requires
contractors on public-works projects to submit certified payrolls that
contain such information.
In response to similar comments, the FAR Council has included in
its final rule the requirement that additions and deductions to gross
pay must be itemized in the wage statement. See FAR 52.222-60(b)(1)(v).
Accordingly, the final Guidance clarifies that additions and deductions
must be itemized.
The Department agrees that it is appropriate to require itemization
of additions and deductions. Section 5(a) of the Order provides that
the wage statement should, among other items, include ``any additions
made to or deductions made from pay.'' The Order, therefore, already
contemplates that any and all additions or deductions be separately
noted in the wage statement; in other words, the wage statement must
itemize or identify each addition or deduction, and not merely provide
a lump sum for the total additions and deductions.
The Department notes that the relevant FLSA regulations require
covered employers to maintain records regarding the nature of each type
of addition to or deduction from gross wages. For instance, besides
having to record the total additions to or deductions from wages, the
FLSA regulations at 29 CFR 516.2(a)(10) also require covered employers
to maintain records for non-exempt employees of the dates, amounts, and
nature of the items which make up the total additions and deductions.
Also, both DBA and SCA regulations require covered contractors to
maintain a record of deductions from wages paid. See 29 CFR
5.5(a)(3)(i), 4.6(g)(1)(iv).\82\ Because these statutes already require
contractors to maintain a record of any additions or deductions,
requiring contractors to provide the same itemized information to
workers in the wage statement will not be overly burdensome.
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\82\ Optional form WH-347 that is typically used by contractors
and subcontractors on Federal or federally-aided construction-type
contracts and subcontracts to submit weekly certified payrolls, for
instance, lists deductions from the worker's gross pay.
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The Department did not receive comments specifically objecting to
the itemization of additions or deductions. Many States currently
require itemized deductions to be included in wage statements.\83\
Contractors working in
[[Page 58706]]
one of these States are already including itemized deductions from
gross pay in the wage statements that they provide. The Department thus
believes that it is reasonable to presume that contractors who already
furnish wage statements usually provide information identifying any
additions or deductions from gross pay.
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\83\ States that currently require itemized deductions include:
Alaska, Connecticut, Hawaii, Illinois, Indiana, Kansas, Kentucky,
Maine, Michigan, Minnesota, Montana, Nevada, New Hampshire, New
Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island,
Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, and
Wyoming. This list is not the list of ``Substantially Similar Wage
Payment States'' that the Order requires the Department to identify.
As discussed below, whether a State law is substantially similar
requires consideration of all of the required elements in a wage
statement--not simply of itemized additions and deductions.
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Moreover, including itemized additions and deductions in the wage
statement allows workers to determine whether they are paid correctly,
identify any error, and promptly raise any questions with the
contractor as necessary. As the Department noted in the Proposed
Guidance, ``[p]roviding a worker with gross pay and all additions to
and deductions from gross pay will necessarily allow the worker to
understand the net pay received and how it was calculated.'' 80 FR
30592.
With regard to suggestions by employee advocates that the wage
statements should identify the name and address of each fringe benefit
fund, and the plan sponsor and administrator of each fringe benefit
plan, the Department believes that listing such information in the wage
statement would be duplicative. Generally, when a worker participates
in a fringe benefit fund or plan, he or she must complete an enrollment
form for the fund or plan to become a registered participant in the
fund or plan. An enrolled or registered worker is given a document with
the fund or plan contact information including, but not limited to: The
name of the fund or plan; the fund's or plan's address, contact number,
and email address; and the amount of the worker's contributions into
the fund or plan. The worker also receives quarterly earnings
statements or plan usage statements, as well as a summary of worker
contributions. See 29 CFR 2520.102-2, .102-3. This information is also
typically available online via the fund's or plan's Web site.
Furthermore, the fund or plan contact information is not essential in
order to understand and calculate the worker's earnings on a pay period
basis or to timely detect errors in their pay; therefore, the
Department does not believe that including this information in the
worker's wage statement is necessary to meet the Order's requirements
and purposes.
Foundation for Fair Contracting also requested that the hourly
fringe-benefit rate be listed in the wage statement. The Department
does not believe it is essential to include the hourly fringe-benefit
rate in the wage statement. The amount of the fringe benefit required
by the DBA or SCA is typically expressed as an hourly rate in the wage
determinations issued by the Department.\84\ The contractor may pay
this amount as a contribution to a fringe benefit fund or plan, or in
``cash'' as an addition to the worker's wages. Section 5(a) of the
Order requires any additions made to gross pay to be listed in the wage
statement. The Department believes that fringe-benefit amounts paid by
the contractor into a fund or plan (e.g., health insurance or
retirement plan) on behalf of the worker should not be considered
additions to the worker's gross pay for purposes of the Order. Such
fringe-benefit contributions are excludable from the regular rate for
purposes of computing overtime pay under the FLSA \85\ and are not
taxable. Fringe-benefit contributions paid by the contractor on behalf
of the worker thus do not need to be included in the wage statement, as
such information has no bearing on determining whether the worker
received the correct cash wages as reported in the wage statement.
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\84\ The wage determination issued under the DBA and SCA that is
applicable to the contract must be posted by the contractor at the
site of work in a prominent and accessible place where it can be
easily seen by the workers. See 29 CFR 5.5(a)(1)(i), 4.6(e). Workers
therefore have access to fringe benefit rate information, further
negating the necessity to include the fringe benefit rate amount in
the wage statement.
\85\ See 29 U.S.C. 207(e)(4); 29 CFR 778.214, 778.215.
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On the other hand, when the contractor elects to meet their fringe
benefit obligation under the DBA or SCA by paying all or part of the
stated hourly amount in ``cash'' to the worker, the payments are
subject to tax withholdings, and the wage statement should list the
fringe benefit amounts paid as an addition to the worker's pay.\86\
Such amounts are part of gross pay.
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\86\ When the fringe benefit (or a portion thereof) is paid in
cash, that amount is excludable from the regular rate for purposes
of computing overtime pay. See 29 CFR 4.177(e), 5.32(c)(1).
---------------------------------------------------------------------------
3. Information To Be Included in the Wage Statement
As discussed above, in order to implement the purposes of the
Order's wage-statement requirement, the final FAR rule has interpreted
the term ``pay'' to mean both gross pay and rate of pay. See FAR
52.222-60(b)(1). And the final rule has clarified that any additions to
or deductions made from gross pay be itemized or identified in the wage
statement. See id. The final Guidance, therefore, provides that wage
statements required under the Order must contain the following
information: 1) hours worked, 2) overtime hours, 3) rate of pay
(whether the regular hourly rate of pay or the monetary amount paid on
a per-day, per-week, per-piece, or other basis), 4) gross pay, and 5)
an itemization of each addition to or deduction from gross pay. See
Guidance, section VII(A).\87\
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\87\ Nothing prohibits the contractor from including more
information in the wage statement (e.g., exempt-status notification,
overtime-pay rate).
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4. Weekly Accounting of Overtime Hours Worked
The Department also received comments from industry commenters
regarding the proposed requirement that if the wage statement is not
provided weekly and is instead provided bi-weekly or semi-monthly
(because the pay period is bi-weekly or semi-monthly), that the hours
worked and overtime hours contained in the wage statement would need to
be broken down to correspond to the period for which overtime is
actually calculated and paid (which will almost always be weekly). See
80 FR 30571 (proposed rule); 80 FR 30591 (Proposed Guidance). Several
employer representatives stated that contractors generally issue wage
statements on a bi-weekly basis, and do not separately provide the
number of hours worked (regular and overtime hours) for the first and
second workweeks of the bi-weekly pay period. These commenters stated
that requiring a weekly accounting of regular hours worked (i.e., hours
worked up to 40 hours) and overtime hours worked in the wage statement
would be costly to implement and unnecessary.
The final FAR rule continues to require that ``the hours worked and
overtime hours contained in the wage statement . . . be broken down to
correspond to the period (which will almost always be weekly) for which
overtime is calculated and paid.'' FAR 52.222-60(b)(2). The Department
accordingly declines to change the Guidance in response to the comments
received.
As the Department discussed in the Proposed Guidance, transparency
in the relationships between employers and their workers is critical to
workers' understanding of their legal rights and to the speedy
resolution of workplace disputes. See 80 FR 30591. The calculation of
overtime pay on a workweek-by-workweek basis as
[[Page 58707]]
required by the FLSA has been a bedrock principle of labor protections
since 1938. 29 U.S.C. 207(a). A wage statement that is provided bi-
weekly or semi-monthly that does not separately state the hours worked
during the first workweek from those worked during the second workweek
of the pay period fails to provide workers with sufficient information
about their pay to be able to determine if they are being paid
correctly. For example, a worker who receives a wage statement showing
80 hours worked during a bi-weekly pay period and all hours paid at the
regular (straight-time) rate may, in fact, have worked 43 hours the
first week and 37 hours the second week. In this case, to comply with
the FLSA, the employer should have paid the worker at time and one half
of the worker's regular rate of pay for the three hours worked after 40
hours in the first workweek. Without documentation of the weekly hours,
it would be difficult for this worker to determine whether overtime pay
is due.
The FLSA already requires that employers calculate overtime pay
after 40 hours worked per week; and the implementing regulations under
the FLSA, DBA, and SCA require employers to maintain payroll records
for at least 3 years. Under the FLSA regulations at 29 CFR 516.2(a)(7),
for instance, an employer must maintain a record of a non-exempt
employee's total hours worked per week. A requirement to keep records
of hours worked also applies to SCA-covered contracts, see 29 CFR
4.6(g)(1)(iii), and to DBA-covered contracts, see 29 CFR 5.5(a)(3)(i).
Moreover, workers covered under DBA must be paid on a weekly basis
requiring a workweek-by-workweek accounting of overtime hours worked.
See 29 CFR 5.5(a)(1)(i). Therefore, including hours worked information
in the wage statement derived on a workweek basis will not be overly
burdensome.
5. Electronic Wage Statements
With regard to providing wage statements electronically, one
industry commenter agreed that providing wage statements electronically
should be an option. One labor union, the United Brotherhood of
Carpenters and Joiners of America (UBCJA), advocated that workers
should be allowed to access wage statements using the contractor's
computer network during work hours. According to UBCJA, merely
providing workers with the Web site address to access their wage
statements on their own would be insufficient as such an arrangement
would require the worker to purchase internet connection to access the
information. One employee advocate suggested that the contractor should
be allowed to provide wage statements electronically only with written
permission from the worker and if written instructions on how to access
the wage statements are provided to the worker.
The final FAR rule provides that contractors have the option of
providing wage statements either by paper-format (e.g., paystubs), or
electronically if the contractor regularly provides documents
electronically and if the worker can access the document through a
computer, device, system, or network provided or made available by the
contractor. FAR 52.222-60(e)(2). The final Guidance accordingly
provides the same. See Guidance, section VII(A). The Department agrees
with UBCJA that merely providing workers with a Web site address would
be insufficient; the contractor must provide the worker with internet
or intranet access for purposes of viewing this information.
The Department, however, believes that it is not necessary to
require contractors to allow workers such access during work hours. The
Department assumes that employees will, in most cases, access wage
statements (or other employer-provided documents, such as leave
statements or tax forms) using the contractor's network or system
during the workday--including during the worker's rest breaks or meal
periods. However, the Department believes it is not necessary to
specifically prescribe a requirement regarding the time period during
which a wage statement can be accessed.
The Department also believes that it is not necessary to require
that workers give consent before receiving the wage statement
electronically, or to require that workers be given written
instructions on how to access the wage statement using the contractor's
computer, device, system, or network. As the Proposed Guidance noted,
the employer must already be regularly providing documents to workers
electronically in order to provide wage statements in the same manner.
See 80 FR 30592. Contractors that already provide documents
electronically presumably also provide general instructions regarding
accessing personnel records on their intranet Web pages; therefore,
additional written instructions specific to accessing the worker's wage
statement using the contractor's computer, device, network, or system
is not necessary. Similarly, requiring a written consent by the worker
is not necessary because the workers for such employers should already
be familiar with the process for receiving documents electronically.
6. Substantially Similar State Laws
The Order provides that the wage-statement requirement ``shall be
deemed to be fulfilled'' where a contractor ``is complying with State
or local requirements that the Secretary of Labor has determined are
substantially similar to those required'' by the Order. Order, section
5(a). If a contractor provides a worker in one of these ``substantially
similar'' States with a wage statement that complies with the
requirements of that State, the contractor would satisfy the Order's
wage-statement requirement. In the Proposed Guidance, the Department
stated that two requirements do not have to be exactly the same to be
``substantially similar''; they must, however, share ``essential
elements in common.'' 80 FR 30587 (quoting Alameda Mall, L.P. v. Shoe
Show, Inc., 649 F.3d 389, 392 (5th Cir. 2011)). The Proposed Guidance
offered two options for determining whether State requirements are
substantially similar to the Order's requirements.
The first proposed option identified as substantially similar those
States and localities that require wage statements to have the
essential elements of overtime hours or earnings, total hours, gross
pay, and any additions to or deductions made from gross pay. As the
Proposed Guidance noted, when overtime hours or earnings are disclosed
in a wage statement, workers can identify from the face of the document
whether they have been paid for overtime hours. Applying this method,
the current list of Substantially Similar Wage Payment States would be
Alaska, California, Connecticut, the District of Columbia, Hawaii, New
York, and Oregon. See 80 FR 30592.
The second proposed option would have allowed wage statements to
omit overtime hours or earnings, as long as the wage statements
included ``rate of pay,'' in addition to the essential elements of
total hours, gross pay, and any additions to or deductions made from
gross pay. The intent of this option was to allow greater flexibility
while still requiring wage statements to provide enough information for
a worker to calculate whether he or she has been paid in full. The
Department noted that one drawback of this option was that failure to
pay overtime would not be as easily detected when compared with the
first option. The worker would have to complete a more difficult
calculation to identify an error in pay. Applying this second method,
the current list of Substantially Similar Wage Payment States would be
Alaska, California, Connecticut, the District of Columbia, Hawaii,
Massachusetts,
[[Page 58708]]
Minnesota, New York, Oregon, Pennsylvania, Texas, Vermont, Washington,
and Wisconsin. See 80 FR 30592.
The Department requested comments regarding the two options and
stated that it could also consider other combinations of essential
elements or other ways to determine whether State or local requirements
are substantially similar. 80 FR 30592.
Numerous employee advocates and members of Congress strongly
supported the first option. These commenters observed that employers
and workers benefit when workers can easily understand their pay by
reviewing their wage statement. These commenters noted that wage
statements also provide an objective record of compensated hours, which
helps employers to more easily meet their burden of demonstrating wages
paid for hours worked. National Employment Law Project (NELP), the
National Women's Law Center (NWLC), and the Service Employees
International Union (SEIU) thus advocated for the first option because
it brings ``greater . . . clarity on the face of the wage statement,''
making it ``easier . . . for an employee to notice any errors and bring
them to the attention of her employer.'' A comment by members of
Congress favored the first option because ``[d]isclosing whether
workers have been paid at the overtime rate is critical to enabling
workers to discern whether they have been paid fairly.'' While
recommending the first option, SEIU and CAPAF further recommended that
the first option be adopted with the modification that rate-of-pay
information also be included as an essential element.
The employee advocates found the second option--which would have
allowed wage statements to omit overtime hours or earnings, as long as
the wage statements include the rate of pay--to lack transparency. The
American Federation of State, County, and Municipal Employees (AFSCME)
stated that workers ``should not be required to apply a mathematical
formula to determine the accuracy of wage payment.'' The United Food
and Commercial Workers (UFCW) noted that omitting overtime hours and
earnings ``will impede employees' ability to recognize whether
employers have failed to pay workers overtime.'' The second option is
less transparent, according to the NWLC, because it makes ``it more
difficult and confusing for employees to understand their paychecks.''
The UBCJA stated that overtime hours or earnings are vital pieces of
information that should not be omitted as such information is
``necessary to protect workers in low-wage industries who are the most
likely to be exploited and the least likely to have the math skills''
required to determine if the wage paid is accurate. As NELP pointed
out, contractors have workers' overtime hours and earnings readily
available as they are required to retain this information under the
law; it would, therefore, not be burdensome to require such information
on wage statements.
On the other hand, the Aerospace Industries Association (AIA)
recommended that the second option be adopted, primarily because it
would result in more substantially similar States and localities than
would the first option--thereby reducing compliance burdens and
providing greater flexibility to contractors. Associated Builders and
Contractors (ABC) also believed the second option ``is more in line
with employers' practices and is less burdensome than the first
option.'' Citing the paycheck-transparency provisions' alleged
``significant burdens,'' the law firm of Ogletree Deakins encouraged
the Department to adopt both options, and include a provision allowing
contractors ``to design their own substantially similar wage statements
that will comply'' with the Order. The U.S. Chamber of Commerce (the
Chamber) stated that the Proposed Guidance was not clear regarding
whether complying the requirement for any one of the substantially
similar States (e.g., the California) ``means that the contractor has
met the [Order's] requirement for all employees or just employees in
that State (i.e., California employees).'' The Chamber recommended that
contractors ``be deemed to be in compliance with the wage statement
requirements if they adopt one State's version nationwide.'' Finally,
the National Association of Manufacturers (NAM) opposed implementation
of any wage-statement requirement until the Department has provided the
public an opportunity to comment on the substantially similar State and
local wage statement laws the Department ultimately identifies.
After carefully reviewing the comments received regarding the two
options discussed above, the Department adopts the first option for
determining whether wage-statement requirements under State law are
substantially similar. The list of Substantially Similar Wage Payment
States now adopted in the final Guidance is: 1) Alaska, 2) California,
3) Connecticut, 4) the District of Columbia, 5) Hawaii, 6) New York,
and 7) Oregon. These States and the District of Columbia require wage
statements to include the essential elements of hours worked, overtime
hours, gross pay, and any itemized additions to and deductions from
gross pay. The list of Substantially Similar Wage Payment States will
be available on the Department's Web site at http://www.dol.gov/fairpayandsafeworkplaces/. See also FAR 52.222-60(c) (providing that
the Order's wage-statement requirement is fulfilled if the contractor
complies with the wage statement laws of these States and localities).
The Department agrees with employee advocates who commented that
the second option--which would allow wage statements to omit overtime
hours worked, as long as the wage statements include the rate of pay--
is less transparent and helpful to workers. Excluding the overtime
hours worked from the wage statement would require a worker to complete
a more difficult computation in order to determine whether the correct
wages were paid. Moreover, the Department agrees with commenters who
noted that including the overtime hours in the wage statement would not
be overly burdensome as contractors are already required to keep such
information in their payroll records under the FLSA.
With regard to SEIU's comment that the Department should adopt the
first option with the modification that the rate of pay be a required
item in the wage statement, the Department declines to do so. As set
forth in the final FAR rule, rate of pay is a required element of the
core wage-statement obligation under the Order. Accordingly, covered
workers in most States will receive wage statements that include rate-
of-pay information. Only in those States and localities deemed
``substantially similar'' will it be permissible to provide a wage
statement that does not include rate of pay. The Department believes
that this accords with the definition of ``substantially similar,''
which means only that the substantially similar laws ``share essential
elements'' with the Order's requirement--not that they be identical.
Moreover, the Department notes that four of the States included in the
first option (Alaska, California, Hawaii, and New York) do already
require wage statements to have the rate-of-pay information.\88\ Thus,
contractors that have workers in those States will already need to
include the rate of pay in their wage statements to comply with
[[Page 58709]]
State law--regardless of the Department's definition in this Guidance.
---------------------------------------------------------------------------
\88\ For Alaska's wage-statement requirements, see 8 AAC
15.160(h); for California, see Labor Code sec. 226(a); for Hawaii,
see HRS sec. 387-6(c); and for New York, see NY Labor Law, art. 6,
sec. 195(3).
---------------------------------------------------------------------------
The Department disagrees with comments by Ogletree Deakins
encouraging the Department to adopt both options. Adopting both options
would mean effectively adopting the second option, which the Department
has deemed to be not as transparent. The Department also declines to
allow contractors ``to design their own substantially similar wage
statements that will comply'' with the Order, as this would likely
result in a variety of wage-statement content, and the provision would
then be difficult to administer. Moreover, the Order does not give the
Department authority to allow contractors to design their own wage
statements for purposes of satisfying the Order's ``substantially
similar'' criteria; thus, this specific suggestion is outside the scope
of the final Guidance.
The Chamber requested clarification regarding whether complying
with a State requirement (e.g., the California State requirement) means
that the contractor has met the Federal requirement for all employees
or just employees in that State. The Department believes that as long
as the contractor complies with the wage-statement requirements of any
of the Substantially Similar Wage Payment States, the contractor will
be in compliance with the final rule. For example, if a contractor has
workers in California and Nevada, the contractor will comply with the
final FAR rule if it provides to workers in both States the same wage
statements as long as the statements adhere to California State
law.\89\ In other words, the contractor would be in compliance with the
final rule if it adopts the wage-statement requirements of any
particular State or locality in the list of Substantially Similar Wage
Payment States in which the contractor has workers, and applies this
model for its workers elsewhere.
---------------------------------------------------------------------------
\89\ California is among the States included in the list of
Substantially Similar Wage Payment States, while Nevada requires
minimal information in the wage statement provided to workers.
---------------------------------------------------------------------------
The Department disagrees with NAM's comment opposing implementation
of any wage-statement requirement until the Department has specifically
identified ``the so-called `substantially equivalent' state and local
laws'' and provided an opportunity to comment. This comment may have
conflated (1) the Department's duty under section 5(a) of the Order to
identify State and local wage-statement laws that are ``substantially
similar'' to the Order's wage-statement requirement with (2) the
Department's duty under section 2(a) of the Order to identify the State
laws that are ``equivalent'' to the 14 Federal labor laws and Executive
orders for which violations must be disclosed.
Finally, the Department received many substantive comments related
to the two options discussing whether certain State and local
requirements are substantially similar to the Order's wage-statement
requirement. The Department developed this final Guidance based on a
careful review of the comments received.
7. Request To Delay Effective Date
One employer advocate suggested that the Department and the FAR
Council allow Federal contractors time to comply with the wage-
statement provisions. The commenter noted that, in the short term,
contractors will have to devise manual wage statements to comply with
the Order until automated systems are able to generate compliant wage
statements. Citing the Department's Home Care rule regarding the
application of the FLSA to domestic service, see 78 FR 60454 (Oct. 1,
2013), which had an effective date 15 months after the publication of
the final rule, the commenter recommended that contractors be provided
at least 12 to 15 months within which to comply with the wage-statement
requirement.
The FAR Council Rule provides that the paycheck transparency
requirements are effective on January 1, 2017. See FAR 22.2007(d). The
Department believes that this delay provides a reasonable length of
time and is sufficient for contractors to update their systems to
comply with the wage-statement provision. Further delaying the
effective date of the wage-statement provision is not warranted. As
discussed above, the Order's wage-statement requirement is deemed
fulfilled where a contractor complies with a State law that the
Department has determined to be ``substantially similar.'' And, in
States with wage-statement laws that are not substantially similar to
the Order's requirements, contractors will need only to supplement the
wage statements already provided pursuant to State law in order to
conform to the Order's requirements.
Moreover, the Department's enforcement experience has shown that
many employers, including Federal contractors, in the small minority of
States that do not require wage statements have opted to provide wage
statements to their workers as part of their general payroll practice.
A contractor in these States may choose either to include in the wage
statements all of the information required by the Order, or follow the
wage-statement requirements of any of the Substantially Similar Wage
Payment States in which it has employees. Finally, as discussed above,
all of the information required to be included in the wage statement
consists of items that contractors already maintain as part of their
normal recordkeeping obligations and general bookkeeping or payroll
practices. The provisions of the wage-statement requirement, in large
part, require contractors only to fine-tune the wage statements they
already provide to workers to include any additional required
information.
8. FLSA Exempt-Status Notification
According to the Order, the wage statement provided to workers who
are exempt from the overtime pay provisions of the FLSA ``need not
include a record of hours worked if the contractor informs the
individuals of their exempt status.'' Order, section 5(a). Because such
workers do not have to be paid overtime under the FLSA, hours-worked
information need not be included in the wage statement. See 80 FR
30592. Thus, if the contractor determines that a worker is exempt from
overtime pay under the FLSA and intends to not include the worker's
hours-worked information on the wage statement provided to the worker,
notification of the worker's exempt status must be provided to the
worker first.
The Department suggested in its Proposed Guidance that in order to
exclude the hours-worked information in the wage statement, the
contractor would have to provide a written notice to the worker stating
that the worker is exempt from the FLSA's overtime pay requirements;
oral notice would not be not sufficient. 80 FR 30592. The final FAR
rule provides that such notices of exempt status must be in writing.
FAR 52.222-60. The Department further proposed that if the contractor
regularly provides documents to workers electronically, the document
informing the worker of his or her exempt status may also be provided
electronically if the worker can access it through a computer, device,
system, or network provided or made available by the contractor. 80 FR
30592. The FAR Council adopted this proposal regarding electronic
notice in its final rule. See FAR 52.222-60. Finally, the proposals
suggested that if a significant portion of the contractor's workforce
is not fluent in English, the document provided notifying the worker of
exempt status must also be in the language(s) other
[[Page 58710]]
than English in which the significant portion(s) of the workforce is
fluent.\90\ See 80 FR 30592. The FAR Council adopted this translation
requirement in its final rule. See FAR 52.222-60.
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\90\ Translation requirements are also discussed below in the
context of the independent contractor notice, in section VII(B)(5)
of the section-by-section analysis.
---------------------------------------------------------------------------
The Department received comments regarding the following issues
related to FLSA exempt status: Type and frequency of the notice,
differing interpretations by the courts regarding exemptions under the
FLSA, and phased-in implementation.
a. Type and Frequency of the Notice
One labor union commented that the contractor should be excused
from recording the overtime hours worked in the wage statement only if
the worker is correctly classified as exempt from the FLSA's overtime
pay requirements. The commenter also recommended that workers should be
informed of their exempt status on each wage statement. An employer-
advocate requested clarification on whether the exempt-status notice
should be provided once (e.g., in a written offer of employment) or on
a recurring basis (e.g., on each wage statement).
With regard to the labor union's comment on the importance of
correctly determining the exempt status of a worker under the FLSA, the
Department agrees that employers should correctly classify their
workers, but does not changes the Guidance in the manner suggested. An
employer who claims an exemption from the FLSA is responsible for
ensuring that the exemption applies. See Donovan v. Nekton, Inc., 703
F.2d 1148, 1151 (9th Cir. 1983). However, the fact that an employer
provides the exempt-status notice to a worker does not mean that the
worker is necessarily classified correctly. The Department will not
consider the notice provided by the contractor to the worker as
determinative of or even relevant to the worker's exempt status under
the FLSA. Therefore, the FAR has clarified that a contractor may not in
its exempt-status notice to a worker indicate or suggest that the
Department or the courts agree with the contractor's determination that
the worker is exempt. See 52.222-60(b)(3). The Department has modified
the Guidance to reflect this clarification.
With regard to the type of notice to be provided to the worker and
how often it should be provided, the final FAR rule requires that
contractors provide notice to workers one time before the worker
performs any work under a covered contract, or in the worker's first
wage statement under the contract. See 52.222-60(b)(3). After carefully
reviewing the comments received, the Department believes that this
requirement is sufficient. If during performance of the contract, the
contractor determines that the worker's status has changed from non-
exempt to exempt (for example, because of a change in the worker's pay,
duties, or both), it must provide notice to the worker either (a) prior
to providing a wage statement without hours worked information or (b)
in the first wage statement after the change. See id. The notice must
be in writing; oral notice is not sufficient. See id. The notice can be
a stand-alone document or be included in the offer letter, employment
contract, position description, or wage statement provided to the
worker. See id.
The Department does not believe it is necessary to require a
contractor to include the exempt-status information on each wage
statement. Although it is permissible to provide notice on each wage
statement, it is also permissible to provide the notice one time before
any work on the covered contract is performed or one time upon a change
from non-exempt to exempt status during the performance of the
contract. If the contractor provides such a one-time notice, there is
no need to provide notice in each wage statement. If the worker's
status later changes from exempt to non-exempt, no notice of the change
is required under the Order, but the contractor must thereafter include
hours worked information on the wage statements provided to the worker.
b. Differing Interpretations by the Courts of an Exemption Under the
FLSA
One industry commenter stated that it would not be prudent to
require employers to report on the exempt or non-exempt status of
workers where there is disagreement among the courts on who is and who
is not exempt under the FLSA. The commenter noted that, for example,
while two Circuit Courts have held that service advisors are exempt
``salesmen'' under section 13(b)(10)(A) of the FLSA, the Ninth Circuit
disagreed and found that the exemption is inapplicable to service
advisors. See, e.g., Navarro v. Encino Motorcars, LLC, 780 F.3d 1267
(9th Cir. 2015).\91\
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\91\ The Supreme Court has since vacated the Ninth Circuit's
decision and remanded the case for further proceedings. See http://www.supremecourt.gov/opinions/15pdf/15-415_mlho.pdf.
---------------------------------------------------------------------------
The Department understands that some court decisions regarding the
exemption status of certain workers under the FLSA may not be fully
consistent. The Department, however, does not find this to be a
persuasive reason to relieve contractors from providing the exempt-
status notice to employees. Regardless of any inconsistency in court
decisions, contractors already must make decisions about whether to
classify their employees as exempt or non-exempt under the FLSA in
order to determine whether to pay them overtime. Such determinations
are based on the facts of each particular situation, the statute,
relevant regulations, guidance from the Department, and advice from
counsel. In addition, in making these determinations, contractors
already must consider any inconsistent court decisions.
The Order does not change this status quo. Under the Order, the
contractor retains the authority and responsibility to determine
whether to claim an exemption under the FLSA. All that is required
under the Order is notice to the workers of the status that the
employer has already determined. And such notice is only required if
the employer wishes to provide workers with a wage statement that does
not contain the worker's hours worked.
c. Request To Delay Implementation of the Exempt-Status Notice
One industry association suggested that compliance with the exempt-
status notice requirements be postponed until the Department has
finalized its proposal to update the regulations defining the ``white
collar'' exemptions under section 13(a)(1) of the FLSA. See 80 FR 38515
(July 6, 2015); http://www.dol.gov/whd/overtime/NPRM2015/. The white-
collar exemptions define which executive, administrative, and
professional employees are exempt from the FLSA's minimum wage and
overtime pay protections. See 29 CFR part 541.
The Department believes that such a delay is unnecessary. The
Department published its final rule updating the white-collar exemption
regulations on May 23, 2016, see 81 FR 32391, and all employers covered
by the FLSA will continue to make determinations of FLSA exempt status
both before and after the update to the regulations becomes effective
on December 1, 2016, see id. The Order does not affect this continuing
obligation. The only new obligation under the Order is to provide
notice to employees of the determination that the contractor has
already made--and only if the contractor wishes to provide employees
with a wage statement without a record of hours worked. Because
contractors
[[Page 58711]]
will need to make exempt-status determinations regardless of any
requirements under the Order, the Department finds the argument that
the Order's requirements be delayed for this reason to be unwarranted.
\92\
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\92\ As discussed in section VII(A)(7) of the Guidance, the
final FAR rule delays the effective date of the Order's paycheck
transparency provisions generally until January 1, 2017.
---------------------------------------------------------------------------
B. Independent Contractor Notice
Section 5(b) of the Order states that if a contractor treats an
individual performing work under a covered contract as an independent
contractor, then the contractor must provide ``a document informing the
individual of this [independent contractor] status.'' Order, section
5(b). Contractors have to incorporate this same provision into covered
subcontracts. See FAR 52.222-60(f).
The proposed FAR Council rule specified that the notice informing
the individual of his or her independent contractor status must be
provided before the individual performs any work on the contract. 80 FR
30572. As the Department noted in the Proposed Guidance, the notice
must be in writing and provided separately from any independent
contractor agreement entered into between the contractor and the
individual. See 80 FR 30593. The Proposed Guidance also noted that if
the contractor regularly provides documents to its workers
electronically, the notice may also be provided electronically if the
worker can access it via a computer, device, system, or network
provided or made available by the contractor. Id.
The Proposed Guidance further stated that the provision of the
notice to a worker informing the worker that he or she is an
independent contractor does not mean that the worker is correctly
classified as an independent contractor under the applicable laws. 80
FR 30593. The determination of whether a worker is an independent
contractor under a particular law remains governed by that law's
definition of ``employee'' and the law's standards for determining
which workers are independent contractors and not employees. See id.
The Department received comments from several unions and other
employee advocates that were supportive of the Order's independent
contractor notice provisions. In contrast, several industry advocates
commented that aspects of the independent contractor notice requirement
need to be clarified. The Department has organized the comments in the
corresponding sections below.
1. Clarifying the Information in the Notice
The Department received comments requesting clarification of the
information that should be included in the independent contractor
notice. Several employee advocates recommended that the document also
notify the worker that, as an independent contractor, he or she is not
entitled to overtime pay under the FLSA, is not covered by worker's
compensation or unemployment insurance, and is responsible for the
payment of relevant employment taxes.
One employee advocate recommended that the notice include a
statement notifying the worker that the contractor's designation of a
worker as an independent contractor does not mean that the worker is
correctly classified as an independent contractor under the applicable
law. Several commenters suggested that the notice also include
information regarding which agency to contact if the worker has
questions about being designated as an independent contractor or needs
other types of assistance. One labor union also recommended that the
Department establish a toll-free hotline that provides more information
on misclassification of employees as independent contractors or tools
to challenge the independent contractor classification.
One industry commenter suggested that the FAR Council or the
Department publish a model independent contractor notice with
recommended language. Another industry commenter requested more
detailed guidance on what the independent contractor notice should
include.
As discussed above, section 5(b) of the Order requires that the
worker be informed in writing by the contractor if the worker is to be
classified as an independent contractor and not an employee. Thus, the
final FAR rule clarifies that the notice must be in writing and
provided separately from any independent contractor agreement entered
into between the contractor and the individual. See FAR 52.222-
60(d)(1)).
The Order, however, does not require the provision of the
additional information suggested by commenters. The Department believes
that notifying the worker of his or her status as an independent
contractor satisfies the Order's requirement. Providing such notice
enables workers to evaluate their status as independent contractors and
raise any concerns. The objective is to minimize disruptions to
contract performance and resolve pay issues early and efficiently. If
the worker has questions or concerns regarding the particular
determination, then he or she can raise such questions with the
contractor and/or contact the appropriate government agency for more
information or assistance.
As stated above, the fact that a contractor has provided a worker
with notice that he or she is an independent contractor does not mean
that the worker is correctly classified as an independent contractor. A
contractor may not in its notice to a worker indicate or suggest that
any enforcement agency or court agrees with the contractor's
determination that the worker is an independent contractor. See FAR
52.222-60(d)(1). The Department will not consider the notice when
determining whether a worker is an independent contractor or employee
under the laws that it enforces.
With regard to comments recommending that the Department establish
a hotline that provides information on issues involving
misclassification of employees as independent contractors, the relevant
agencies within the Department already have toll-free helplines that
workers and contractors can access to obtain this type of information
and for general assistance. Members of the public, for example, can
call the Wage and Hour Division's toll-free helpline at 1(866) 4US-WAGE
(487-9243), the Occupational Safety and Health Administration at 1(800)
321-OSHA (6742), the Office of Federal Contract Compliance Programs at
1(800) 397-6251. The National Labor Relations Board can be reached at
1(866) 667-NLRB, and the Equal Employment Opportunity Commission can be
reached at 1(800) 669-4000. Moreover, the enforcement agencies'
respective Web sites contain helpful information regarding employee
misclassification.
With regard to comments requesting a sample independent contractor
notice, the Department does not believe it is necessary to create a
template notice. The Department expects that any notice will explicitly
inform the worker that the contractor has made a decision to classify
the workers as an independent contractor.
2. Independent Contractor Determination
Several industry commenters suggested that the Department clarify
which statute should provide the basis for determining independent-
contractor status for purposes of the Order's requirement. These
commenters noted that the Proposed Guidance stated that the
determination of whether a worker
[[Page 58712]]
is an independent contractor or employee under a particular law remains
governed by that law's definition of ``employee.'' See 80 FR 30593. The
commenters stated that they are uncertain as to what definition should
be used in determining whether a worker is an employee or independent
contractor.
The Department does not believe that it is necessary or appropriate
to pick one specific definition of ``employee'' for the Order's
independent-contractor notice requirement. Employers already make a
determination of whether a worker is an employee (or an independent
contractor) whenever they hire a worker. The Order does not affect this
responsibility; it only requires the contractor to provide the worker
with notice of the determination that the contractor has made. If the
contractor has determined that the worker is an independent contractor,
then the employer must provide the notice.
3. Frequency of the Independent Contractor Notice
The Department received comments regarding the number of times an
individual who is classified as an independent contractor and engaged
to perform work on several covered contracts should receive notice of
his or her independent contractor status. Two industry commenters, for
example, noted that an independent contractor who provides services on
multiple covered contracts on an intermittent basis could receive
dozens of identical notices, resulting in redundancy and
inefficiencies. Other industry commenters believed that providing
multiple notices for the same work performed on different covered
contracts is burdensome and unnecessary. Two industry commenters
suggested that an independent contractor agreement between the relevant
parties should satisfy the Order's independent contractor notice
requirement.
The final FAR rule provides that the notice informing the
individual of his or her independent contractor status must be provided
at the time that an independent contractor relationship is established
with the individual or before he or she performs any work under the
contract. FAR 52.222-60(d)(1). The FAR Council has also clarified in
its final rule that contractors must provide the independent contractor
notice to the worker for each covered contract on which the individual
is engaged to perform work as an independent contractor. See id. The
Guidance reflects this clarification. The Department agrees that there
may be circumstances where a worker who performs work on more than one
covered contract would receive more than one independent contractor
notice. The Department, however, believes that because the
determination of independent contractor status is based on the
circumstances of each particular case, it is reasonable to require that
the notice be provided on a contract-by-contract basis even where the
worker is engaged to perform the same type of work. It is certainly
possible that the facts may change on any of the covered contracts such
that the work performed requires a different status determination.
Moreover, if the contractor determines that a worker's status while
performing work on a covered contract changes from employee to
independent contractor (because the nature of the relationship between
the worker and contractor changes), the contractor must provide the
worker with notice of independent contractor status before the worker
performs any work under the contract as an independent contractor. See
id. If a contractor provides a worker on a covered contract with an
independent contractor notice and later determines that the worker's
status under that contract has changed to that of an employee, no
notice of the change is required under the Order.
4. Workers Employed by Staffing Agencies
The Department received several comments regarding contractors that
use temporary workers employed by staffing agencies and whether these
contractors must provide such workers with a document notifying them
that they are independent contractors. NAM believed that in such cases,
``temporary workers are neither independent contractors nor employees
of the contractor.'' Several industry commenters suggested that the
final Guidance clarify that contractors would not be required to
provide notice of independent contractor status to temporary workers
who are employees of a staffing agency or similar entity, but not of
the contractor. Some of these commenters also recommended that the
independent contractor status notice be given only to those workers to
whom the contractor provides an IRS Form 1099.
In situations where contractors use temporary workers employed by
staffing agencies to perform work on Federal contracts, the contract
with the staffing agency may be a covered subcontract under the Order.
Section 5 of the Order requires that the independent contractor status
notice requirement be incorporated into subcontracts of $500,000 or
more. See Order, section 5(a). If the contract with the staffing agency
is a covered subcontract, and the staffing agency treats the workers as
employees, then no notices would be required. If the contract with the
staffing agency is a covered subcontract, and the staffing agency
treats the workers as independent contractors, then the staffing agency
(not the contractor) is required to provide the workers with notice of
their independent contractor status.\93\
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\93\ When using a staffing agency, a contractor should consider
whether it jointly employs the workers under applicable laws. The
Department recently issued guidance under the FLSA and MSPA for
determining joint employment. See ``Joint employment under the Fair
Labor Standards Act and the Migrant and Seasonal Agricultural Worker
Protection Act,'' https://www.dol.gov/whd/flsa/Joint_Employment_AI.pdf.
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The Department disagrees with comments suggesting that the
contractor should provide independent contractor notices only to those
workers to whom the contractor already provides an IRS Form 1099.
Employers use a Form 1099-MISC to report, among other items, ``payments
made in the course of a trade or business to a person who is not an
employee or to an unincorporated business.'' \94\ The Order does not
limit the requirement to provide the independent contractor notice to
workers who receive a Form 1099-MISC. To the extent the contractor has
classified an individual as an independent contractor for Federal
employment tax purposes and provides the individual a Form 1099-MISC,
the contractor must provide the individual with the independent-
contractor status notice. The Department, however, declines to
interpret the Order as limiting the universe of workers who should
receive an independent contractor notice to only those workers to whom
the contractor already provides a Form 1099.
---------------------------------------------------------------------------
\94\ See ``Form 1099-MISC & Independent Contractors,'' https://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Small-Business,-Self-Employed,-Other-Business/Form-1099-MISC-&-Independent-Contractors/Form-1099-MISC-&-Independent-Contractors (last visited July 22,
2016).
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5. Translation Requirements
The FAR Council's proposed regulations required that if a
significant portion of the contractor's workforce is not fluent in
English, the document notifying a worker of the contractor's
determination that the worker is an independent contractor, and the
wage statements to be provided to the worker, must also be in the
language(s) other than English in which the significant portion of the
workforce is ``more
[[Page 58713]]
familiar.'' 80 FR 30572. The FAR Council's final rule provides a
translation requirement. FAR 52.222-60(e)(1).
The Department received comments requesting clarification regarding
what would constitute a ``significant portion'' of the workforce
sufficient to trigger the translation requirement. One industry
commenter stated that the final Guidance should set a specific
threshold. Another stated that the translation requirement is
unnecessary and should be removed. One labor union commenter
recommended that the term ``significant portion'' of the workforce be
defined as 10 percent or more of the workforce under the covered
contract.
One industry commenter, AGC, posited a situation where there are
various foreign languages spoken in the workplace. AGC requested
clarification regarding whether the contractor would be required to
provide the wage statement and the independent contractor notice to
workers in every language that is spoken by workers not fluent in
English. AGC suggested that the wage-statement translation requirement
be revised such that the contractor need only provide the wage
statement in English and ``in each other language in which a
significant portion of the workforce is fluent.''
With regard to translating the independent contractor notice, AGC
recommended that this requirement apply only when the company is aware
that the worker is not fluent in English. Another industry commenter
also stated that it would not be sensible to require contractors to
provide notice in Spanish to an independent contractor who only speaks
English simply because a significant portion of the contractor's
workforce is fluent in Spanish. AGC further advocated that, instead of
including the complete translation in each wage statement or
independent contractor notice for each worker, contractors should be
allowed to provide only a Web site address where the translations are
posted.
After carefully reviewing the comments, the Department declines to
provide a specific threshold interpreting what would constitute a
``significant portion'' of the workforce sufficient to trigger the
translation requirement. The Department notes that this requirement is
similar to regulatory requirements implementing two of the Labor Laws,
the FMLA, 29 CFR 825.300(a)(4), and MSPA, 29 CFR 500.78. The term
``significant portion'' has not been defined under these regulations,
and the lack of a definition or bright-line test has not prevented
employers from complying with the requirement. For these reasons, the
term is not defined in the final Guidance.
The Department agrees with AGC's suggestion about workplaces where
multiple languages are spoken. Where a significant portion of the
workforce is not fluent in English, the Department believes that the
contractor should provide independent-contractor notices to workers in
each language in which a significant portion of the workforce is
fluent. However, the Department does not agree with AGC's suggestion
that it will be sufficient in all cases to provide a Web site address
where the translated notice would be posted. Where workers are not
fluent in English, providing a link to a Web site for the translation
would be ineffective at providing the required notice.
VIII. Effective Date and Phase-in of Requirements
The effective date of the FAR Council's final rule is October 25,
2016. The Department received various comments related to the effective
date of the Order's requirements. These commenters expressed two
general concerns: First, about the burden of the disclosure
requirements and the need for time to implement the necessary systems
to track Labor Law violations; and second, about fairness related to
the consideration of Labor Law violations that occurred before the
effective date of the FAR rule. As discussed below, the FAR Council is
phasing in the effective date of the disclosure requirements to address
these concerns. The Department has created a separate section of the
Guidance, section VIII, that contains a summary of the relevant
provisions.
Phase-in of Disclosure Requirements
Multiple industry commenters expressed concern that contractors
would not have time to be prepared for the implementation of the FAR
rule unless the effective date of the rule is delayed. One commenter
specifically expressed concern that existing contractor staff are not
equipped to gather and report all violations. Another expressed concern
specifically about the difficulty for prime contractors of making
responsibility determinations for their subcontractors, and requested
that subcontractor disclosure requirements be phased in over the course
of 5 years.
In response to these concerns, the FAR Council has staggered the
phase in of the Order's core disclosure requirements. From the October
25, 2016 effective date to April 24, 2017, the Order's prime-contractor
disclosure requirements will apply only to solicitations with an
estimated value of $50 million or more, and resultant contracts. FAR
22.2007(a) and (c)(1). After April 24, 2017, the prime-contractor
disclosure requirements will apply to all solicitations greater than
$500,000--which is the amount specified in the Order--and resultant
contracts. Id. 22.2007(a) and (c)(2); Order, section 2(a). This also
applies to the commercial items equivalent for prime contractors, at
FAR 52.212-3(s). The subcontractor disclosure requirements are further
staggered; they are not effective for the first year of operation of
the FAR rule implementing the Order. While the rule overall is
effective on October 25, 2016, the subcontractor disclosure
requirements are not effective until October 25, 2017. See FAR
22.2007(b). This phasing in of the requirements is discussed in the new
``Effective date and phase-in of requirements'' section of the
Guidance.
``Retroactivity'' of Disclosure Requirement
With regard to the concern about fairness of disclosing violations
prior to the effective date of the FAR rule, a number of commenters
expressed concern that the 3-year disclosure period will require
contractors to ``retroactively'' disclose Labor Law violations during
the rule's first years of operation. For example, the HR Policy
Association argued that it is ``fundamentally unfair'' to require
contractors to disclose violations Labor Law decisions that were
rendered prior to the effective date of the Order and that any
disclosure ``should be only prospective in nature.'' The Section of
Public Contract Law of the American Bar Association (PCL Section)
recommended that the disclosure requirement be phased-in and that only
decisions after the disclosure requirement's effective date be
disclosed. According to the PCL Section, a phase-in of the 3-year
disclosure period would allow ``contractors the opportunity to put
systems in place'' and would give ``the federal procurement process
time to adapt[.]''
The Department agrees that the requirement to look back 3 years
when disclosing Labor Law decisions should be phased-in, and the FAR
Council's final rule provides for such a phase-in. See FAR 55.222-
57(c)(1)-(2), 55.222-58(b). This 3-year disclosure period is being
phased in so that contractors will not disclose any decisions that were
rendered against them prior to October 25, 2015. In the language of the
FAR, disclosures of Labor Law violations must be made for decisions
rendered
[[Page 58714]]
during ``the period beginning on October 25, 2015 to the date of the
offer, or for 3 years preceding the date of the offer, whichever period
is shorter.'' Id. 55.222-57(c)(1)-(2), 55.222-58(b). Thus, full
implementation of the 3-year disclosure period will not be reached
until October 25, 2018. As a result of this phase-in, contractors will
not disclose Labor Law decisions that were rendered against them more
than 1 year prior to the effective date of the FAR rule.\95\
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\95\ As discussed above, the date on which the Labor Law
decision was rendered--not the date of the underlying conduct--
controls whether a decision must be disclosed. Therefore, even with
the phase in of the disclosure requirements, a contractor may still
need to disclose Labor Law decisions for which the underlying
conduct occurred more than 1 year prior to the effective date of the
FAR rule.
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Phased Implementation of Equivalent State Laws
The Order directs the Department to define the State laws that are
equivalent to the 14 identified Federal labor laws and Executive
orders. Order, section 2(a)(i)(O). Contractors are required to disclose
violations of these equivalent State laws, in addition to the 14
Federal laws and orders. See id. In the Proposed Guidance, the
Department proposed that OSHA-approved State Plans should be considered
equivalent State laws for purposes of the Order, and stated that the
Department would identify additional equivalent State laws in a second
guidance to be published in the Federal Register at a later date. See
80 FR 30574, 30579.
Several commenters expressed concern with this proposed phased
implementation and argued that the Guidance is incomplete without
identification of all equivalent State laws. A number of them argued
that without knowing all of the equivalent State laws, employers are
unable to estimate the costs associated with implementing the Order,
including the disclosure requirements. One commenter asserted that by
failing to identify equivalent State laws, the Proposed Guidance
ignored the costs of tracking and disclosing violations of potentially
hundreds of additional laws and the potential costs of entering into
labor compliance agreements with respect to those additional laws. Some
industry commenters called for a delay of the implementation of the
Order's requirements until guidance identifying the equivalent State
laws is issued. NAM requested that the second guidance not be issued at
all because the requirement will be ``unworkable.'' Several employee
advocates, in contrast, encouraged the Department to issue the second
guidance ``swiftly'' before the end of 2015.
The Department has considered these comments and declines to modify
the Guidance as suggested. The final Guidance reiterates that the
Department will identify the equivalent State laws in addition to OSHA-
approved State plans in a second guidance published in the Federal
Register at a later date. The Department notes that the future guidance
and accompanying FAR rulemaking on equivalent State laws will
themselves be subject to notice and comment, and the rulemaking will
address any additional economic burden resulting from the addition of
equivalent State laws to the list of laws for which violations must be
disclosed.
While the Department believes that contractors may incur some
limited costs when adjusting compliance tracking systems to track
violations of any newly-identified State laws, the Department believes
such costs will be de minimis. In contrast, delaying implementation of
the entirety of the Order's disclosure requirements until the
subsequent rulemaking would have negative consequences on economy and
efficiency of Federal contracting by allowing contractors who have
unsatisfactory records of compliance with the 14 Federal labor laws
identified in the Order, and OSHA-approved State Plans, to secure new
contracts in the interim.
Paycheck Transparency Provisions
The final FAR rule implementing the paycheck transparency
provisions specifies that contracting officers will be required to
insert the paycheck transparency contract clause into covered contracts
beginning on January 1, 2017. FAR 22.2007(d). This delayed effective
date is included in the final Guidance.
IX. Other Comments
A. Public Availability of Disclosures and Assessment Information
Concerns about the accuracy of the information that contractors
will disclose were the basis of a number of requests from commenters
that the information disclosed be made publicly available. Many unions
and worker-advocacy groups suggested that the information disclosed by
contractors pursuant to the Order's requirements be made available in a
database or Web page that is accessible to the public and easy to use.
Commenters argued that making this information public will help ensure
that the contractors disclose their entire legal record and interested
parties are able to spot incomplete or inaccurate disclosures.\96\ For
some of these commenters, public disclosure requirements are essential
to effective third-party involvement, which in their view is the most
effective means to capture contractor misrepresentations or ongoing
violations. Several commenters stated that making information publicly
available is key in ensuring transparency in the process. A group of
labor and employment lawyers stated that
---------------------------------------------------------------------------
\96\ Similarly, some of these commenters expressed concern that
OSHA's public database of violations does not include, or does not
include enough information about, violations of section 11(c) of the
OSH Act. The Department notes that OSHA's database does include
information about certain 11(c) cases, and it does include
information from some OSHA-approved State Plans about their
retaliation cases.
[r]esponsible contractors should welcome greater transparency and
accountability because it will ensure that they do not face unfair
competition from companies that cut corners by cheating their
workers or ignoring important health-and-safety obligations.\97\
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\97\ One commenter recommended that a list of the companies
undergoing responsibility reviews be published and updated by the
Department. Another commenter proposed that each contracting agency
track and annually report to the Department specific information
regarding its contractors' compliance with the Labor Laws. However,
these recommendations are beyond the Department's authority under
the Order.
In contrast, industry commenters believed that the disclosure
requirements are already too public. They suggested that protections be
put in place to protect confidential and proprietary information in
disclosures made by contractors pursuant to the Order's requirements.
Several also suggested that any information disclosed by contractors
and made publicly available should be redacted to remove any personally
identifiable information. A few commenters were concerned that the
release of information disclosed by contractors would have a negative
effect on a contractor's business and reputation, especially if there
are errors in the data presented, and as such, these commenters
requested that the Department or the FAR establish a means of
correcting information made publicly available.
The Department believes that the final FAR rule provides a
reasonable balance between these two opposing views. The final FAR rule
distinguishes between the required Labor Law decision disclosures and
the optional additional relevant information that a contractor can
submit to demonstrate its responsibility. The required initial
representation and disclosure of limited information about each Labor
Law
[[Page 58715]]
decision is information that will be publicly available in the Federal
Awardee Performance and Integrity Information System (FAPIIS). FAR
22.2004-2(b)(1)(i); id. 52.222-57(f). Similarly, where a contractor
enters into a labor compliance agreement, the entry will be noted in
FAPIIS by the ALCA and the fact that a labor compliance agreement has
been agreed to will be public information. Id. 22.2004-2(b)(9). The
optional additional information that a contractor provides, however,
will only be made public if the contractor determines that it wants the
information to be made public. Id. 22.2004-2(b)(1)(ii). The Department
believes that this strikes an appropriate balance; it allows access to
Labor Law decision information so that the public can assist in
assuring full disclosure, while protecting more sensitive information
about internal business practices.
With regard to the comments about personally-identifiable
information and other confidential information, the Department adds
that information disclosed by contractors pursuant to the Order will--
like any other information submitted during the procurement process--be
subject to the protections of the Freedom of Information Act (FOIA) and
the Privacy Act. The Department does not believe that the information
submitted should be made any more or less publicly available than other
information already disclosed by contractors as part of the contracting
process and responsibility determinations. Although the Order's
disclosure requirements may be new, the disclosed information fits into
an existing process for making responsibility determinations, and the
public availability of information disclosed pursuant to the Order
should be the same as the public availability of information that
already must be disclosed--which includes information about violations
of other laws, organizational capacity, financing, and other
potentially sensitive or confidential information.
B. Participation of Third-Parties
Many employee advocacy groups urged the Department to provide more
specific guidance about the participation of interested third-parties
in the processes required by the Order. Several of these commenters
suggested that the Department provide further specificity about how
third-parties should submit information about a contractor's Labor Law
violations to ALCAs for consideration when assessing a contractor's
record. The commenters identified parties that might provide
information as: The general public, worker representatives, community
groups, labor-management cooperative committees, other contractors,
worker advocate groups, and others. One commenter, NABTU, warned that
competitors should not be considered ``stakeholders'' in this process,
``to avoid contractors using the responsibility determination process
to undercut one another.''
The Department agrees that the participation of interested third-
parties is an important element of the effective implementation of the
Order. The Order contemplates that information regarding Labor Law
violations will be ``obtained through other sources.'' Order, section
2(b)(ii). The Department interprets this term to include any other
relevant source--including employees, worker representatives, community
groups, and the public. The Department finds no reason to exclude
competitors from this process. Under longstanding Federal procurement
rules, ``[c]ontracting officers are `generally given wide discretion'
in making responsibility determinations and in determining the amount
of information that is required to make a responsibility
determination.'' Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1334-35 (Fed. Cir. 2001) (quotations marks and
citations omitted). The Department does not believe that the Order
intended to limit the sources of information that contracting officers
may consider--either during the preaward or postaward process.
If an interested third party has information about relevant Labor
Law decisions that it believes has not been properly disclosed by a
contractor, the interested party is encouraged to provide that
information to the relevant ALCA. The Department will maintain a list
of ALCAs, including the Department's ALCA, and their contact
information on its Web site at http://www.dol.gov/fairpayandsafeworkplaces. Relevant third-party information can further
inform ALCAs and help them perform duties such as encouraging
prospective contractors with serious, repeated, willful, and/or
pervasive violations to work with enforcement agencies to address
compliance problems; providing input to past performance evaluations;
and notifying agency suspending and debarring officials when
appropriate. However, the Department notes, the amount of information
given out to the public about ongoing procurements is limited and
controlled, see Procurement Integrity Act, 41 U.S.C. Chapter 21, and
therefore contracting officers cannot contact third parties during an
ongoing procurement to solicit information about a prospective
contractor.
Numerous worker-advocacy organizations also suggested that ALCAs
and contracting officers should be required to consult with worker
representatives during negotiation of a labor compliance agreement.
These commenters observed that employees have direct knowledge of
working conditions, and therefore that they and their representatives
can provide useful input about what remedial measures would be most
effective and should be included in a labor compliance agreement. One
worker advocacy organization proposed that labor compliance agreements
should contain a process for contracting officers to receive third-
party complaints about grievances and Labor Law violations, monitoring
arrangements, or labor compliance agreements. Several labor
organizations commented that employees and their representatives should
be able to report compliance problems to the ALCA or the Department
with protections against retaliation.
The Department declines to modify the Guidance to specifically
require the involvement of worker representatives in the negotiation of
labor compliance agreements. As stated above, the FAR rule contemplates
that enforcement agencies--not ALCAs or contracting officers--will
negotiate labor compliance agreements with contractors. Therefore, the
enforcement agencies will decide, based on their policies and
procedures, if they will consult with or otherwise involve third
parties during negotiations of labor compliance agreements.
The same is true of methods for third parties to submit information
about adherence to a labor compliance agreement. As discussed above in
section III(C) of this section-by-section analysis, enforcement
agencies will determine the terms of each labor compliance agreement on
a case-by-case basis, taking into consideration the totality of the
circumstances. Many enhanced compliance agreements and suspension-and-
debarment administrative agreements contain auditing, monitoring, and
whistleblower protection mechanisms that are intended to encourage
employees and others to provide information about adherence to the
agreement. Enforcement agencies may include these types of mechanisms
in labor compliance agreements, and may provide information about
adherence to agreements to the relevant ALCAs. The final FAR rule
requires an ALCA to consult with the Department as needed
[[Page 58716]]
when verifying whether the contractor is meeting the terms of the
agreement, see FAR 22.2004-3(b), through which any information that
enforcement agencies have received from third parties may be provided
to the ALCA. Conversely, if the ALCA has received information from
third parties, he or she may provide that information to the relevant
enforcement agency.
C. Anti-Retaliation and Whistleblower Protections for Reporting
Information
Several employee-advocacy organizations expressed concerns that
contractor employees who report Labor Law violations to ALCAs may be
subject to retaliation and suggested that workers of contractors
receive notice about anti-retaliation and whistleblower protections.
The Northern California Basic Crafts Alliance further requested that a
notice of Federal whistleblower protections be included in all
documents that public officials are required to complete under the
Order and its accompanying regulations. This commenter also suggested
that government workers tasked with carrying out the Order be provided
such notice.
The Department appreciates the serious concern raised by these
commenters, but declines to make any changes to the Guidance. The Order
does not provide for additional protections for whistleblowers. The
Department notes, however, that Federal law already provides
whistleblower protections to contractor employees who report fraud or
other violations of the law related to Federal contracts. See, e.g., 31
U.S.C. 3730(h) (the False Claims Act), 10 U.S.C. 2409 (protecting
Department of Defense and NASA whistleblowers from retaliation).
Whistleblower protection for contractor employees is also covered in
FAR subpart 3.9. With regard to government employees, the Notification
and Federal Employee Antidiscrimination and Retaliation Act of 2002
(known as the No Fear Act) requires that agencies provide annual notice
to Federal employees, former Federal employees, and applicants for
Federal employment of the rights and protections available under
Federal antidiscrimination and whistleblower protection laws.
Guidance for Executive Order 13673, ``Fair Pay Safe Workplaces''
Table of Contents
Introduction
I. Purpose and Summary of the Order
A. Statutory Requirements for Contracting With Responsible
Sources
B. Legal Authority
C. Summary of the Order's Requirements and Interaction With
Existing Requirements
II. Preaward Disclosure Requirements
A. Covered Contracts
B. Labor Law Decisions
1. Defining ``Administrative Merits Determination''
2. Defining ``Civil Judgment''
3. Defining ``Arbitral Award or Decision''
4. Successive Labor Law Decisions Arising From the Same
Underlying Violation
C. Information That Must Be Disclosed
1. Initial Representation
2. Required Disclosures
3. Opportunity To Provide Additional Relevant Information,
Including Mitigating Factors
III. Preaward Assessment and Advice
A. Classifying Labor Law Violations
1. Serious Violations
2. Repeated Violations
3. Willful Violations
4. Pervasive Violations
B. Weighing Labor Law Violations and Mitigating Factors
1. Mitigating Factors That Weigh in Favor of a Satisfactory
Record of Labor Law Compliance
2. Factors That Weigh Against a Satisfactory Record of Labor Law
Compliance
C. Advice Regarding a Contractor's Record of Labor Law
Compliance
1. ALCA Recommendation
2. ALCA Analysis
IV. Postaward Disclosure Updates and Assessment of Labor Law
Violations
V. Subcontractor Responsibility
VI. Preassessment
VII. Paycheck Transparency
A. Wage Statement
B. Independent Contractor Notice
VIII. Effective Date and Phase-In of Requirements
Appendix A: Serious Violations
Appendix B: Repeated Violations
Appendix C: Willful Violations
Appendix D: Pervasive Violations
Appendix E: Assessing Violations of the Labor Laws
Introduction
The Department of Labor (the Department) issues this guidance
document (the Guidance) to assist the Federal Acquisition Regulatory
Council (FAR Council) and Federal agencies in the implementation of
Executive Order 13673, Fair Pay and Safe Workplaces (the Order), 79 FR
45309, as amended.\98\ Among other important directives, the Order
provides new instructions to Federal agency contracting officers to
consider a Federal contractor's compliance with 14 identified Federal
labor laws and Executive orders and equivalent State laws
(collectively, ``Labor Laws'') as a part of the determination of
contractor responsibility that Federal contracting officers must
undertake before awarding a contract.
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\98\ Executive Order 13673 was amended by Executive Order 13683,
December 11, 2014 (79 FR 75041, December 16, 2014) and Executive
Order __ (FR __, [DATE]). This document provides guidance for the
Order as amended.
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The Order directed the FAR Council to issue regulations as
necessary to implement the new requirements and processes. The Order
also created detailed implementation roles for the Department, the
Office of Management and Budget (OMB), and the General Services
Administration (GSA). These agencies are implementing the Order in
stages, on a prioritized basis.
The Order gives the Department several specific implementation and
coordination duties. The Order directs the Secretary of Labor (the
Secretary) to develop guidance to define various relevant terms,
identify the State laws that are equivalent to those Federal laws
covered by the Order, and specify which State wage-statement
requirements are substantially similar to the Order's wage-statement
requirement. The Order also directs the Secretary to develop processes
for coordination between the Department and newly-designated agency
labor compliance advisors (ALCA) and processes by which contracting
officers and ALCAs may give appropriate consideration to determinations
and agreements made by Federal enforcement agencies.
This Guidance satisfies most of the Department's responsibilities
for issuing guidance, and the Department will publish at a later date a
second guidance that satisfies its remaining responsibilities. The
second guidance will be, as this Guidance was, submitted for notice and
comment, published in the Federal Register, and accompanied by a
proposed amendment to the FAR rule. The Department will likewise submit
for notice and comment and publish any future updates to the Guidance
that will have a significant effect beyond the operating procedures of
the Department or that will have a significant cost or administrative
impact on contractors or offerors. The Department will coordinate with
the FAR Council in determining whether updates will have a significant
cost or administrative impact.
This Guidance contains the following sections. Section I discusses
the reasons for the Order and summarizes its requirements. Section II
provides guidance about the Order's preaward disclosure requirements
and defines the types of information that prime contractors and
subcontractors must disclose under the Order. The Guidance defines
``administrative merits determinations,'' ``civil judgments,'' and
``arbitral awards or decisions'' (collectively, ``Labor Law
decisions'').
[[Page 58717]]
Section III explains how ALCAs should assess Labor Law violations
and provide advice and analysis to contracting officers during the
preaward process. The first part of section III deals with how ALCAs
should classify violations, and it defines the classification terms
``serious,'' ``repeated,'' ``willful,'' and ``pervasive'' for purposes
of the Order. The second part of section III explains how ALCAs should
weigh a contractor's violations, including any potential mitigating
factors and factors that weigh against a recommendation that the
contractor has a satisfactory record of Labor Law compliance. The third
part explains the process in the FAR rule for the ALCA to provide
advice and analysis to the contracting officer about a contractor's
record of Labor Law compliance, including whether negotiation of a
labor compliance agreement is warranted.
Section IV provides guidance on the disclosure and assessment
process during the postaward period. Section V summarizes the process
under the Order for determining subcontractor responsibility. Section
VI sets out the Department's preassessment process to help contractors
come into compliance before the contractor bids on a solicitation.
Section VII provides guidance on the Order's paycheck transparency
provisions. Section VIII discusses the effective date and phase-in of
the Order's requirements, including the phase-in of the Order's
requirement for disclosure of violations of equivalent State laws.
I. Purpose and Summary of the Order
The Order states that the Federal Government will promote economy
and efficiency in procurement by contracting with responsible sources
that comply with labor laws. See Order, section 1. The Order seeks to
increase efficiency and cost savings in the work performed by parties
that contract with the Federal Government by ensuring that they
understand and comply with labor laws. See id.
Beyond their human costs, labor law violations create risks to the
timely, predictable, and satisfactory delivery of goods and services to
the Federal Government, and Federal agencies risk poor performance by
awarding contracts to companies with histories of labor law violations.
Poor workplace conditions lead to lower productivity and creativity,
increased workplace disruptions, and increased workforce turnover. For
contracting agencies, this means receipt of lower quality products and
services and increased risk of project delays and cost overruns.
Contracting agencies can reduce execution delays and avoid other
complications by contracting with contractors with track records of
labor law compliance--and by helping to bring contractors with past
violations into compliance. Contractors that consistently adhere to
labor laws are more likely to have workplace practices that enhance
productivity and to deliver goods and services to the Federal
Government in a timely, predictable, and satisfactory fashion.
Moreover, contractors who invest in their workers' safety and
maintain a fair and equitable workplace should not have to compete with
contractors who offer lower bids--based on savings from skirting labor
laws--and then ultimately deliver poor performance to taxpayers. By
contracting with employers who are in compliance with labor laws, the
Federal Government can ensure that taxpayers' money supports jobs in
which workers have safe workplaces, receive the family leave to which
they are entitled, get paid the wages they have earned, and do not face
unlawful workplace discrimination.
A. Statutory Requirements for Contracting With Responsible Sources
By statute, contracting agencies are required to award contracts to
responsible sources only. See 10 U.S.C. 2305(b); 41 U.S.C. 3702(b),
3703. A ``responsible source'' means a prospective contractor that,
among other things, ``has a satisfactory record of integrity and
business ethics.'' 41 U.S.C. 113(4). Part 9 of the Federal Acquisition
Regulation (FAR) implements this statutory ``responsibility''
requirement. The FAR states that ``[p]urchases shall be made from, and
contracts shall be awarded to, responsible prospective contractors
only.'' FAR 9.103(a).\99\ In accordance with the statutory definition
of ``responsible source,'' the FAR states that ``[t]o be determined
responsible, a prospective contractor must . . . [h]ave a satisfactory
record of integrity and business ethics . . . .'' FAR 9.104-1(d). Thus,
for every procurement contract, an agency contracting officer must
consider whether a contractor has a satisfactory record of integrity
and business ethics and then make an affirmative determination of
responsibility--that the awardee is a responsible source.
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\99\ The FAR can be found at title 48 of the Code of Federal
Regulations. Citations in this Guidance to the FAR use format FAR
[section] instead of 48 CFR [section].
---------------------------------------------------------------------------
B. Legal Authority
The President issued the Order pursuant to his authority under
``the Constitution and the laws of the United States,'' expressly
including the Federal Property and Administrative Services Act (the
Procurement Act), 40 U.S.C. 101 et seq. The Procurement Act authorizes
the President to ``prescribe policies and directives that the President
considers necessary to carry out'' the statutory purposes of ensuring
``economical and efficient'' government procurement and administration
of government property. 40 U.S.C. 101, 121(a). The Order establishes
that the President considers the requirements included in the Order to
be necessary to economy and efficiency in Federal contracting. See
Order, section 1.
The Order directs the Secretary to define certain terms used in the
Order and to develop guidance ``to assist agencies'' in implementing
the Order's requirements. Order, sections 2(a)(i), 4(b). The Guidance
does not bind private parties or agency officials. Rather, the Order
directs the FAR Council to issue the regulations necessary to implement
the new requirements and processes. It is the Order and the FAR Council
regulations that bind prospective contractors, subcontractors,
contracting officers, and other agency officials--not the Guidance. The
Guidance is not a regulation, and it does not amend or supersede the
Order or the FAR. Where the Guidance uses mandatory language such as
``shall,'' ``must,'' ``required,'' or ``requirement,'' it does so only
to describe the Department's interpretation of the regulatory
requirements in the FAR.
C. Summary of the Order's Requirements and Interaction With Existing
Requirements
The Order builds on the pre-existing procurement system by
instructing Federal agency contracting officers to consider a
contractor's Labor Law violations, if any, as a factor in determining
if the contractor has a satisfactory record of integrity and business
ethics and may therefore be found to be a responsible source eligible
for a contract award. See Order, section 2(a)(ii) and (iii). The
Order's requirements are implemented through Part 22 of the FAR, which
requires Federal agencies to include certain contract clauses in
covered contracts.
To facilitate the responsibility determination, the Order provides
that, for all covered procurement contracts (defined below in section
II(A)), each agency must require that the contractor make an initial
representation regarding whether there have been any Labor Law
decisions rendered against the contractor within the preceding 3-year
[[Page 58718]]
period for violations of the 14 identified Labor Laws. See Order,
section 2(a)(i); Guidance, section II (Preaward disclosure
requirements).
The 14 Federal labor laws or Executive orders identified in the
Order are:
The Fair Labor Standards Act (FLSA);
the Occupational Safety and Health Act of 1970 (OSH Act);
the Migrant and Seasonal Agricultural Worker Protection
Act (MSPA);
the National Labor Relations Act (NLRA);
40 U.S.C. chapter 31, subchapter IV, also known as the
Davis-Bacon Act (DBA);
41 U.S.C. chapter 67, also known as the Service Contract
Act (SCA);
Executive Order 11246 of September 24, 1965 (Equal
Employment Opportunity);
section 503 of the Rehabilitation Act of 1973;
the Vietnam Era Veterans' Readjustment Assistance Act of
1972 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974;
the Family and Medical Leave Act (FMLA);
title VII of the Civil Rights Act of 1964 (Title VII);
the Americans with Disabilities Act of 1990 (ADA);
the Age Discrimination in Employment Act of 1967 (ADEA);
and
Executive Order 13658 of February 12, 2014 (Establishing a
Minimum Wage for Contractors).
Prior to an award, as a part of the responsibility determination,
contractors with Labor Law decisions to disclose must make an
additional disclosure of information about each violation. See FAR
22.2004-1(a). In addition, contracting officers must provide
contractors with an opportunity to disclose any steps taken to correct
any disclosed violations or improve compliance with the Labor Laws,
including any agreements entered into with an enforcement agency. See
Order, section 2(a)(ii); Guidance, section II(C)(3). Contracting
officers, in consultation with the relevant ALCA, then must consider
the information in determining if a contractor is a responsible source
with a satisfactory record of integrity and business ethics. See Order,
section 2(a)(iii); Guidance, section III (Preaward assessment and
advice). ALCAs provide advice and analysis to the contracting officer
about the contractor's record of Labor Law compliance, including in
some cases a recommendation that the contractor needs to enter into an
agreement to implement appropriate remedial measures or other actions
to avoid further violations (a labor compliance agreement) or a
recommendation that the agency suspending and debarring official should
be notified. See FAR 22.2004-2(b).
Similar requirements apply to subcontractors. See Order, section
2(a)(iv); FAR 52.222-59(c); Guidance, section V (Subcontractor
responsibility). Contractors are bound by the contract clause in their
Federal award to require subcontractors on covered subcontracts to
disclose any Labor Law decisions rendered against the subcontractor
within the preceding 3-year period. See FAR 52.222-59(c)(3). A
subcontractor with Labor Law decisions to disclose is required to make
this disclosure to the Department, which provides the subcontractor
with advice regarding its record of Labor Law compliance. See FAR
52.222-59(c)(3)(ii), (c)(4)(ii)(C); [Amended Order]. The subcontractor
then must provide the Department's advice to the contractor, which will
use that advice in determining whether the subcontractor is a
responsible source. See FAR 52.222-59(c)(4)(ii)(C). The contractor will
(in most cases, before awarding the subcontract) consider the advice
from the Department in determining whether the subcontractor is a
responsible source that has a satisfactory record of integrity and
business ethics. See id. 52.222-59(c)(2).
The Order's disclosure requirement continues after an award is
made. Semiannually during the performance of the contract, contractors
must update the information provided about their own Labor Law
violations and obtain the required information for covered
subcontracts. See Order, section 2(b)(i); Guidance, section VI
(Postaward disclosure updates and assessment of Labor Law violations).
If a contractor discloses information regarding Labor Law violations
during contract performance, or similar information is obtained through
other sources, the contracting officer, in consultation with the ALCA,
considers whether action is necessary. See Order, section 2(b)(ii).
Such action may include requiring the contractor to enter into a labor
compliance agreement, declining to exercise an option on a contract,
terminating the contract in accordance with relevant FAR provisions, or
referring the contractor to the agency suspending and debarring
official. See id. If information regarding Labor Law decisions rendered
against a contractor's subcontractor is brought to the attention of the
contractor, then the contractor shall similarly consider whether action
is necessary with respect to the subcontractor. See id. section
2(b)(iii).
The Order requires each contracting agency to designate a senior
agency official to be an ALCA to provide consistent guidance to
contracting officers. See Order, section 3. In consultation with the
Department and other agencies responsible for enforcing the Labor Laws,
ALCAs help contracting officers to: Review information regarding Labor
Law decisions disclosed by contractors; assess whether disclosed
violations are serious, repeated, willful, or pervasive; review the
contractor's remediation of the violation and any other mitigating
factors; and determine if the violations identified warrant remedial
measures, such as a labor compliance agreement. See id. section 3(d);
FAR 22.2004-1(c)(3).
The Order also contains two paycheck transparency requirements. See
Order, section 5; Guidance, section VII (Paycheck transparency). First,
the Order requires contractors to provide all individuals performing
work under the contract for whom they are required to maintain wage
records under the FLSA, DBA, SCA, or equivalent State laws with a wage
statement that contains information concerning that individual's hours
worked, overtime hours, pay, and any additions made to or deductions
made from pay. See Order, section 5(a). The Order instructs that the
wage statement for individuals who are exempt from the overtime
compensation requirements of the FLSA need not include a record of
hours worked if the contractor informs the individuals of their exempt
status. See id. Contractors can satisfy the Order's wage-statement
requirement by providing a wage statement that complies with an
applicable State or local wage-statement requirement that the Secretary
has determined is substantially similar to the Order's wage-statement
requirement. See id. Second, the Order provides that if a contractor is
treating an individual performing work under a covered contract as an
independent contractor, and not an employee, the contractor must
provide a document informing the individual of this status. See id.
section 5(b). The Order and the implementing FAR contract clause
require contractors to incorporate these same two paycheck transparency
requirements into covered subcontracts. See id. sections 5(a)-(b); FAR
52.222-60.\100\
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\100\ The Order further requires contracting agencies to ensure
that for all contracts where the estimated value of the supplies
acquired and services required exceeds $1 million, provisions in
solicitations and clauses in contracts shall provide that
contractors agree that the decision to arbitrate claims arising
under Title VII or any tort related to or arising out of sexual
assault or harassment may only be made with the voluntary consent of
employees or independent contractors after such disputes arise,
subject to certain exceptions. See Order, section 6. Contracting
agencies must require contractors to incorporate this same
requirement into subcontracts where the estimated value of the
supplies acquired and services required exceeds $1 million, subject
to certain exceptions. See id. This Guidance does not address this
arbitration requirement.
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[[Page 58719]]
Finally, the Order requires that, in developing the Guidance and
proposing to amend the FAR, the Secretary and the FAR Council minimize,
to the extent practicable, the burden of complying with the Order for
Federal contractors and subcontractors and in particular for small
entities, including small businesses and small nonprofit organizations.
See Order, section 4(e). The intent of the Order is to minimize
additional compliance burdens and to increase economy and efficiency in
Federal contracting by helping more contractors and subcontractors come
into compliance with workplace protections, not by denying them
contracts. Toward that end, the Order provides that ALCAs and the
Department will be available for consultation with contractors
regarding the Order's requirements, see Order, sections 2(a)(vi),
2(b)(iii), 3(c), and that contracting officers (and contractors for
their subcontractors) will take into account any remedial actions and
other mitigating factors when making a responsibility determination.
II. Preaward Disclosure Requirements
This section of the Guidance discusses who must disclose Labor Laws
decisions during the preaward period, what types of Labor Law decisions
must be disclosed, and what particular categories of information must
be disclosed for each decision. This section of the Guidance also
defines the meaning of the different types of Labor Law decisions:
``administrative merits determination,'' ``civil judgment,'' and
``arbitral award or decision.''
During the preaward process, the Order requires contracting
agencies to include provisions in solicitations for all covered
procurement contracts (defined below) that will require prospective
contractors to disclose certain information about Labor Law violations.
See Order, section 2(a). The solicitation provisions require all
prospective contractors bidding on covered contracts to make an initial
representation regarding whether there have been any Labor Law
decisions rendered against them within the preceding 3 years. See FAR
22.2004-1(a) and 22.2007(a); FAR 52.222-57; FAR 52.212-3(s) (commercial
items). Later, only a subset of these prospective contractors--those
for whom a responsibility determination is being performed--must make a
more detailed disclosure about each Labor Law decision. See id.
22.2004-1(a). These disclosure requirements are phased in during the
first year of the Order's effect. Section VIII below contains a
description of the phases of implementation.
The Order and the final FAR rule also contain requirements for
postaward disclosure, see Order, section 2(b); FAR 22.2004-1(a), and
for disclosure by subcontractors, see Order, section 2(a)(iv); FAR
22.2004-1(b) and 52.222-58. These requirements are discussed below in
sections IV and V, respectively.
A. Covered Contracts
The Order applies to contracting activities by executive agencies.
See Order, section 1. The term ``executive agency'' is defined under
the FAR as ``an executive department, a military department, or any
independent establishment within the meaning of 5 U.S.C. 101, 102, and
104(1), respectively, and any wholly owned Government corporation
within the meaning of 31 U.S.C. 9101.'' FAR 2.101. This Guidance
generally uses the term ``contracting agencies'' to refer to executive
agencies that are engaged in contracting.
The Order requires prime contractors to make disclosures for
procurement contracts with contracting agencies for goods and services,
including construction, only where the estimated value of the supplies
acquired and services required exceeds $500,000.\101\ See Order,
section 2(a)(i). For purposes of this Guidance, these contracts are
referred to as ``covered procurement contracts.'' As used in this
Guidance, the term ``contract'' has the same meaning as it has under
the FAR. See FAR 2.101. Thus, the term ``contract'' means a procurement
contract and does not include grants and cooperative agreements (which
are not subject to the Order's requirements).
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\101\ See FAR 1.108(c) (explaining computation of dollar
thresholds under the FAR).
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The Order and the FAR rule also apply to certain subcontracts. The
definition of covered subcontracts and the specific disclosure rules
associated with subcontractors are discussed in detail in section V of
this Guidance. This Guidance uses the term ``covered contracts'' to
include both covered procurement contracts and covered subcontracts.
The Order's disclosure requirements apply to contracts and
subcontracts for commercial items that otherwise satisfy the Order's
criteria. See FAR 52.212-3(s); 52.244-6. The coverage for commercially
available off-the-shelf (COTS) items is more limited: Contracts for
COTS items are covered procurement contracts if they otherwise satisfy
the Order's criteria, but subcontracts for COTS items are not covered
by the Order and therefore are not covered subcontracts. See id. FAR
22-2004-1(b) (exempting only subcontracts for COTS items).
In this Guidance, references to ``contractors'' include entities
that hold covered procurement contracts as well as prospective
contractors, or ``offerors,'' meaning any entity that bids for a
covered procurement contract. Similarly, references to
``subcontractors'' include entities that hold covered subcontracts as
well as prospective subcontractors, or ``offerors,'' meaning any entity
that bids for a covered subcontract. The term ``entity'' is properly
understood to include both organizations and individuals that apply for
and receive covered contracts.
B. Labor Law Decisions
The Order creates disclosure requirements for contractors and
subcontractors performing or bidding on covered contracts. Under the
Order, contractors and subcontractors must disclose Labor Law decisions
that have been ``rendered against [them] within the preceding 3-year
period.'' See Order, sections 2(a)(i), 2(a)(iv)(A).
The 3-Year Disclosure Period
The FAR provides for a phase-in of the 3-year disclosure period
prior to October 25, 2018. Accordingly, the contract clauses require
disclosure of Labor Law decisions rendered against the offeror ``during
the period beginning on October 25, 2015 to the date of the offer, or
for three years preceding the date of the offer, whichever period is
shorter.'' FAR 52.222-57(c) (covering contractor disclosures); 52.222-
58(b) (covering subcontractor disclosures). The phase-in is also
discussed below in section VIII of this Guidance.
The ``preceding 3-year period'' refers to the 3 years preceding the
date of the offer (i.e., the contract bid or proposal). Contractors and
subcontractors must disclose Labor Law decisions rendered during this
3-year disclosure period even if the underlying conduct that violated
the Labor Laws occurred more than 3 years prior to the date of the
[[Page 58720]]
disclosure. For example, if an employer failed to pay overtime due to
workers in 2014, and the Department's Wage and Hour Division (WHD)
makes a determination in 2016 that the employer violated the FLSA, then
the employer must disclose the FLSA determination when bidding on a
contract in 2018, even though the conduct underlying the violation
occurred more than 3 years prior to the date of the employer's bid.
Additionally, contractors and subcontractors must disclose Labor
Law decisions whether or not the underlying conduct occurred in the
performance of work on a covered contract. Accordingly, a contractor or
subcontractor must disclose a Labor Law decision even if it was not
performing or bidding on a covered contract at the time. For example,
if the Department's Occupational Safety and Health Administration
(OSHA) determines that an employer violated a safety standard and the
employer later (within 3 years of the determination) bids for the first
time on a covered contract, the employer must disclose the OSHA
citation even though it was not a contractor or bidding on a covered
contract at the time when it received the determination.
Covered Labor Laws and Equivalent State Laws
Labor Law decisions that must be disclosed include those issued for
violations of the 14 Federal laws and Executive orders specified in the
Order. These laws are listed in section 2 of the Order and the list is
included above in section I(C) of this Guidance. In addition,
contractors and subcontractors must disclose violations of State laws
that the Department identifies as equivalent to those 14 Federal laws.
See Order, section 2(a)(i)(O).
The Department has determined that OSHA-approved State Plans are
equivalent State laws for the purposes of the Order. The OSH Act
permits certain States to administer OSHA-approved State occupational
safety-and-health plans in lieu of Federal enforcement of the OSH Act.
Section 18 of the OSH Act encourages States to develop and operate
their own job safety-and-health programs, and OSHA approves and
monitors State Plans and provides up to 50 percent of an approved
plan's operating costs. OSHA-approved State Plans are described and
listed in 29 CFR part 1952, and further information about such plans
can be found at https://www.osha.gov/dcsp/osp/index.html. Labor Law
decisions finding violations under an OSHA-approved State Plan are
therefore subject to the Order's disclosure requirements.
In future guidance, the Department will identify additional
equivalent State laws. Until this subsequent guidance and a subsequent
FAR amendment are published, contractors and subcontractors are not
required to disclose violations of State laws other than the OSHA-
approved State Plans.
1. Defining ``Administrative Merits Determination''
Enforcement agencies issue notices, findings, and other documents
when they determine that any of the Labor Laws have been violated. For
purposes of this Guidance, ``enforcement agency'' means any agency that
administers the Federal Labor Laws: The Department and its agencies--
OSHA, WHD, and the Office of Federal Contract Compliance Programs
(OFCCP); and the Occupational Safety and Health Review Commission
(OSHRC).\102\ Enforcement agencies also include the Equal Employment
Opportunity Commission (EEOC) and the National Labor Relations Board
(NLRB). ``Enforcement agency'' does not include a Federal agency that,
in its capacity as a contracting agency, undertakes an investigation of
a violation of the Federal Labor Laws.\103\ For purposes of this
Guidance, ``enforcement agency'' also includes a State agency
designated to administer an OSHA-approved State Plan, but only to the
extent that the State agency is acting in its capacity as administrator
of such plan. And once the Department's second guidance (to be
published at a later date) identifying the State laws that are
equivalent to the Federal Labor Laws is finalized, and a corresponding
FAR amendment is published, ``enforcement agency'' will also include
any State agency that enforces those identified equivalent State laws.
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\102\ OSHRC is an independent Federal agency that provides
administrative trial and appellate review in contests of OSH Act
citations or penalties.
\103\ For example, contracting agencies may investigate
violations of the DBA relating to contracts that they administer,
but that does not make them enforcement agencies for purposes of the
Order.
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For purposes of the Order, the term ``administrative merits
determination'' means any of the following notices or findings--whether
final or subject to appeal or further review--issued by an enforcement
agency following an investigation that indicates that the contractor or
subcontractor violated any provision of the Labor Laws:
(a) From the Department's Wage and Hour Division:
A WH-56 ``Summary of Unpaid Wages'' form;
a letter indicating that an investigation disclosed a
violation of the FLSA or a violation of the FMLA, SCA, DBA, or
Executive Order 13658;
a WH-103 ``Employment of Minors Contrary to The Fair Labor
Standards Act'' notice;
a letter, notice, or other document assessing civil
monetary penalties;
a letter that recites violations concerning the payment of
subminimum wages to workers with disabilities under section 14(c) of
the FLSA or revokes a certificate that authorized the payment of
subminimum wages;
a WH-561 ``Citation and Notification of Penalty'' for
violations under the OSH Act's field sanitation or temporary labor camp
standards;
an order of reference filed with an administrative law
judge.
(b) from the Department's Occupational Safety and Health
Administration or any State agency designated to administer an OSHA-
approved State Plan:
A citation;
an imminent danger notice;
a notice of failure to abate; or
any State equivalent;
(c) from the Department's Office of Federal Contract Compliance
Programs:
A show cause notice for failure to comply with the
requirements of Executive Order 11246, section 503 of the
Rehabilitation Act, the Vietnam Era Veterans' Readjustment Assistance
Act of 1972, or the Vietnam Era Veterans' Readjustment Assistance Act
of 1974;
(d) from the Equal Employment Opportunity Commission:
A letter of determination that reasonable cause exists to
believe that an unlawful employment practice has occurred or is
occurring;
(e) from the National Labor Relations Board:
A complaint issued by any Regional Director;
(f) a complaint filed by or on behalf of an enforcement agency with
a Federal or State court, an administrative law judge or other
administrative judge alleging that the contractor or subcontractor
violated any provision of the Labor Laws; or
(g) any order or finding from any administrative law judge or other
administrative judge, the Department's Administrative Review Board, the
Occupational Safety and Health Review Commission or State equivalent,
or the National Labor Relations Board that the contractor or
subcontractor violated any provision of the Labor Laws.
The above definition provides seven categories of documents,
notices, and findings from enforcement agencies that
[[Page 58721]]
constitute the administrative merits determinations that must be
disclosed under the Order. The list is an exhaustive one, meaning that
if a document does not fall within one of categories (a) through (g)
above, the Department does not consider it to be an ``administrative
merits determination'' for purposes of the Order.
In addition, the Department will publish at a later date a second
proposed guidance that identifies an eighth category of administrative
merits determinations: The documents, notices, and findings issued by
State enforcement agencies when they find violations of the State laws
equivalent to the Federal Labor Laws.
Categories (a) through (e) in the definition list types of
administrative merits determinations that are issued by specific
enforcement agencies. Categories (f) and (g) describe types of
administrative merits determinations that are common to multiple
enforcement agencies. Category (f) is necessary because it is possible
that an enforcement agency will not have issued a notice or finding
following its investigation that falls within categories (a) through
(e) prior to filing a complaint in court.
Administrative merits determinations are issued following an
investigation by the relevant enforcement agency. Administrative merits
determinations are not limited to notices and findings issued following
adversarial or adjudicative proceedings such as a hearing, nor are they
limited to notices and findings that are final and unappealable. Thus,
an administrative merits determination still must be disclosed under
the Order even if the contractor is challenging it or can still
challenge it. The Department recognizes that contractors may dispute an
administrative merits determination. As set forth below, when
contractors disclose administrative merits determinations, they may
also submit any additional information that they believe may be helpful
in assessing the violations at issue (including the fact that the
determination has been challenged). Additionally, contractors have the
opportunity to provide information regarding any mitigating factors.
This information will be carefully considered. See below section
III(B).
Certain ``complaints'' issued by enforcement agencies are included
in the definition of ``administrative merits determination.'' The
complaints issued by enforcement agencies included in the definition
are not akin to complaints filed by private parties to initiate
lawsuits in Federal or State courts. Each complaint included in the
definition represents a finding by an enforcement agency following a
full investigation that a Labor Law was violated; in contrast, a
complaint filed by a private party in a Federal or State court
represents allegations made by that plaintiff and not any enforcement
agency. Employee complaints made to enforcement agencies (such as a
complaint for failure to pay overtime wages filed with WHD or a charge
of discrimination filed with the EEOC) are not administrative merits
determinations.
2. Defining ``Civil Judgment''
For purposes of the Order, the term ``civil judgment'' means any
judgment or order entered by any Federal or State court in which the
court determined that the contractor violated any provision of the
Labor Laws, or enjoined or restrained the contractor from violating any
provision of the Labor Laws. Civil judgment includes a judgment or
order that is not final or is subject to appeal.
A civil judgment could be the result of an action filed in court by
or on behalf of an enforcement agency or, for those Labor Laws that
establish a private right of action, by a private party or parties. The
judgment or order in which the court determined that a violation
occurred may be the result of a jury trial, a bench trial, or a motion
for judgment as a matter of law, such as a summary judgment motion.
Even a decision granting partial summary judgment may be a civil
judgment if, for example, the decision finds a violation of the Labor
Laws but leaves resolution of the amount of damages for later in the
proceedings. Likewise, a preliminary injunction (but not a temporary
restraining order) can be a civil judgment if the order enjoins or
restrains a violation of the Labor Laws. Civil judgments include
consent judgments and default judgments to the extent that there is a
determination in the judgment that any of the Labor Laws have been
violated, or the judgment enjoins or restrains the contractor from
violating any provision of the Labor Laws. A private settlement where
the lawsuit is dismissed by the court without any judgment being
entered is not a civil judgment. An accepted offer of judgment pursuant
to the Federal Rule of Civil Procedure 68 is also not a civil judgment
for the purposes of the Order.
Civil judgments do not include judgments or orders issued by an
administrative law judge or other administrative tribunals, such as
those identified in the definition of administrative merits
determination. Such judgments and orders may be administrative merits
determinations. If, however, a Federal or State court issues a judgment
or order affirming an administrative merits determination, then the
court's decision is a civil judgment.
Civil judgments include a judgment or order finding that a
contractor violated any of the Labor Laws even if the order or decision
is subject to further review in the same proceeding, is not final, can
be appealed, or has been appealed. As set forth below, when contractors
disclose civil judgments, they may also submit any additional
information that they believe may be helpful in assessing the
violations at issue--including the fact that the civil judgment has
been appealed. Additionally, contractors have the opportunity to
provide information regarding any mitigating factors.
3. Defining ``Arbitral Award or Decision''
For purposes of the Order, the term ``arbitral award or decision''
means any award or order by an arbitrator or arbitral panel in which
the arbitrator or arbitral panel determined that the contractor
violated any provision of the Labor Laws, or enjoined or restrained the
contractor from violating any provision of the Labor Laws. Arbitral
award or decision includes an arbitral award or decision regardless of
whether it is issued by one arbitrator or a panel of arbitrators and
even if the arbitral proceedings were private or confidential.
Arbitral award or decision also includes an arbitral award or
decision finding that a contractor violated any of the Labor Laws even
if the award or decision is subject to further review in the same
proceeding, is not final, or is subject to being confirmed, modified,
or vacated by a court. As set forth below, when contractors disclose
arbitral awards or decisions, they may also submit any additional
information that they believe may be helpful in assessing the
violations at issue (including the fact that they have sought to have
the award or decision vacated or modified). Additionally, contractors
have the opportunity to provide information regarding any mitigating
factors.
4. Successive Labor Law Decisions Arising From the Same Underlying
Violation
If a contractor appeals or challenges a Labor Law decision, there
may be successive decisions that arise from the same underlying
violation. For example, if a contractor receives an OSHA
[[Page 58722]]
citation and appeals that citation, it may receive an order from an
administrative law judge (ALJ) upholding or vacating that citation.
Similarly, if a contractor receives an adverse decision from the
Department's Administrative Review Board (ARB) and challenges the
decision in Federal court, it may receive a court judgment concerning
that decision.
Whether successive Labor Law decisions must be disclosed depends on
the nature of the most recent decision at the time of disclosure. Where
the most recent Labor Law decision finds no violation--or otherwise
reverses or vacates all prior findings of a violation--then the
contractor does not need to disclose any of the decisions. Where the
most recent decision has reinstated an initial finding of a violation,
however, then the latest decision reinstating the finding must be
disclosed. Thus, in the first example above, if the ALJ reverses the
OSHA citation, the contractor need not disclose either the initial
citation or the ALJ's order. But if the violation is later reinstated
by the full OSHRC or by a Federal court of appeals, the contractor must
disclose the OSHRC or appellate court decision.
Where the most recent Labor Law decision upholds or affirms any
finding of violation, the contractor should disclose only the Labor Law
decision that is the most recent at the time of disclosure. Thus, in
the second example above, if the Federal court affirms the ARB's
decision, or modifies it but does not vacate it in its entirety, the
contractor should disclose the more recent court order and need not
disclose the original ARB decision.
Where the most recent Labor Law decision does not affirm or vacate
the violation, but instead remands it for further proceedings, the
underlying violation must still be disclosed. For example, an ALJ may
grant a pre-trial motion for summary decision upholding an OSHA
citation, and then OSHRC may reverse the ALJ decision and remand it
because the OSHRC believes that a full trial was necessary to determine
whether to uphold the citation. In that case, the OSHRC has not
completely reversed or vacated the original OSHA citation, so the
contractor still must disclose the original OSHA citation.
Similarly, if the contractor appeals or challenges only part of a
Labor Law decision, the contractor should continue to disclose the
original Labor Law decision even if a successive Labor Law decision has
been issued. For example, if, within the preceding 3-year period, a
district court finds a contractor liable for Title VII and FLSA
violations, and the contractor appeals only the Title VII judgment to
the court of appeals, it must continue to disclose the district court
decision (containing the finding of an FLSA violation) even if a
subsequent court of appeals decision vacates the Title VII violation.
If the contractor disclosed a Labor Law decision before being
awarded a covered contract, and a successive decision arising from the
same underlying violation is rendered during the performance of the
contract and affirms that the contractor committed the violation, the
successive decision is a Labor Law decision within the meaning of this
Guidance. Therefore, the contractor must disclose the most recent
decision when it updates its disclosures during performance of the
contract. See FAR 22.2004-3(a).
C. Information That Must Be Disclosed
The following sections provide guidance on the information that
must be disclosed during the preaward stage of the contracting process.
Section 22.2004 of the FAR sets forth the specific requirements for
what must be disclosed at each stage, and how such information is to be
reported. The process by which subcontractors make disclosures is
discussed in section V(A) below.
1. Initial Representation
When a contractor bids on a solicitation for a covered procurement
contract, it must disclose whether any Labor Law decisions have been
rendered against it ``during the period beginning on October 25, 2015
to the date of the offer, or for three years preceding the date of the
offer, whichever period is shorter.'' FAR 52.222-57(c). At this stage,
the contractor must represent to the best of its knowledge and belief
whether it has or has not had such a decision rendered against it,
without providing further information. See FAR 52.222-57(c).
2. Required Disclosures
If a contractor reaches the stage in the process at which a
responsibility determination is initiated, and that contractor
responded affirmatively at the initial representation stage, the
contracting officer will require additional information about that
contractor's Labor Law violation(s). See FAR 52.222-57(d)(1).\104\ For
each administrative merits determination, civil judgment, or arbitral
award or decision that must be disclosed, the contractor must provide:
---------------------------------------------------------------------------
\104\ In addition to the information that the Order instructs
the contracting officer to request, contracting officers also have a
general duty to obtain such additional information as may be
necessary to be satisfied that a prospective contractor has a
satisfactory record of integrity and business ethics. See FAR 9.105-
1(a).
---------------------------------------------------------------------------
The Labor Law that was violated;
the case number, inspection number, charge number, docket
number, or other unique identification number;
the date that the determination, judgment, award, or
decision was rendered; and
the name of the court, arbitrator(s), agency, board, or
commission that rendered it.
See FAR 52.222-57(d)(1)(i). The contractor must disclose this
information in the System for Award Management (SAM) unless an
exception from SAM registration applies. See FAR 22.2004-2(b)(1)(i),
(iii).
With regard to the second element of information listed above, the
contractor should provide the inspection number for OSH Act citations,
the case number for NLRB proceedings, the charge number for EEOC
proceedings, the investigation or case number for WHD investigations,
the case number for investigations by OFCCP, the case number for
determinations by administrative tribunals, and the case number for
court proceedings.
3. Opportunity To Provide Additional Relevant Information, Including
Mitigating Factors
The contractor may also provide additional information that it
believes will demonstrate its responsibility. See FAR 52.222-
57(d)(1)(iii). The contractor must disclose this additional information
in SAM unless an exception from SAM registration applies. See id.
22.2004-2(b)(1)(i) and (iii), 52.222-57(d)(1)(iv). The additional
information may include mitigating factors and remedial measures, such
as information about steps taken to correct the violations at issue,
the negotiation or execution of a settlement agreement or labor
compliance agreement, or other steps taken to achieve compliance with
the Labor Laws. See id. 22.2004-2(b)(1)(ii). The contractor may also
provide any other information that they believe may be relevant,
including that it is challenging or appealing an adverse Labor Law
decision. The information that the contractor submits will be carefully
considered during an ALCA's assessment of the contractor's record of
compliance.
The additional relevant information provided by the contractor will
not be made public unless the contractor determines that it wants the
information
[[Page 58723]]
to be made public. Id. 22.2004-2(b)(1)(ii). However, where a contractor
enters into a labor compliance agreement, the entry will be noted in
the Federal Awardee Performance and Integrity Information System
(FAPIIS), available at www.fapiis.gov/, by the ALCA and the fact that a
labor compliance agreement has been agreed to will be public
information. Id. 22.2004-2(b)(9).
Mitigating circumstances are discussed in more depth below in
section III(B)(1) and labor compliance agreements are discussed in
section III(C).
4. Preaward Updates to Representations
Contractors have a duty to provide an update to the contracting
officer prior to the date of an award if the contractor's initial
representation is no longer accurate. In some procurements, a period of
time may pass between the date of the contractor's offer on the
contract and the date of the award. If, during this time, a new Labor
Law decision is rendered or the contractor otherwise learns that its
representation is no longer accurate, the contractor must notify the
contracting officer of an update to its representation. See FAR 52.222-
57(e). This means that if the contractor made an initial representation
that it had no Labor Law decisions to disclose, and since the time of
the offer a new decision is rendered, the contractor must notify the
contracting officer. The reverse is also true: If, for example, an
offeror made an initial representation that it has a Labor Law decision
to disclose, and since the time of the offer that Labor Law decision
has been vacated by the enforcement agency or a court, the contractor
must notify the contracting officer.
III. Preaward Assessment and Advice
For every procurement contract, the agency's contracting officer
must consider whether a contractor has a satisfactory record of
integrity and business ethics and then make an affirmative
determination of responsibility before making the award. The
contracting officer considers relevant responsibility-related
information from a number of sources, including members of the
procurement team who are subject-area experts. In determining whether
the contractor's history of Labor Law compliance reflects a
satisfactory record of integrity and business ethics, the contracting
officer considers the analysis and advice provided by the ALCA, using
this section of the Guidance, as required by the Order and the
implementing FAR rule. As discussed in section V(A) below, contractors
will make the same determination for each of their subcontractors
performing a covered subcontract, considering analysis and advice
provided by the Department regarding any Labor Law decisions disclosed
by the subcontractor.
This section of the Guidance explains the three-step process by
which ALCAs assess a contractor's record of Labor Law compliance and
provide preaward advice to contracting officers. Section III(A)
explains the first step: Classifying the Labor Law violations. At this
stage, an ALCA reviews all of the contractor's violations to determine
if any are ``serious,'' ``repeated,'' ``willful,'' or ``pervasive.''
Section III(B) discusses the second step: Weighing the Labor Law
violations. At this point, the ALCA analyzes any serious, repeated,
willful, and/or pervasive violations in light of the totality of the
circumstances, including any mitigating factors that are present.
Section III(C) discusses the third step: The ALCA provides advice to
the contracting officer regarding the contractor's record of Labor Law
compliance and whether a labor compliance agreement or other action is
warranted.
In the first step of the assessment process, the ``classification''
step, an ALCA reviews each of the contractor's Labor Law violations to
determine which, if any, are serious, repeated, willful, and/or
pervasive. Section III(A) of the Guidance defines these four terms. All
violations of Federal laws are a serious matter; but, for purposes of
the Order, certain Labor Law violations are classified as serious,
repeated, willful, and/or pervasive. As explained below, the
classification of a violation as serious, repeated, willful, and/or
pervasive does not automatically result in a finding that a contractor
lacks integrity and business ethics. Rather, this subset of all Labor
Law violations represents those that may bear on an assessment of a
contractor's integrity and business ethics; violations that fall
outside this subset are less likely to have a significant impact. Thus,
although the Order requires contractors to disclose all Labor Law
decisions from the relevant time period, only those decisions involving
violations classified as serious, repeated, willful, and/or pervasive
are considered as part of the weighing step and factor into the ALCA's
written analysis and advice.
In the second step of the assessment process, the ``weighing''
step, the ALCA analyzes the contractor's serious, repeated, willful,
and/or pervasive violations of Labor Laws in light of the totality of
the circumstances, including, among other factors, the severity of the
violation(s), the size of the contractor, and any mitigating factors.
During the assessment process, the ALCA considers whether the
contractor has a satisfactory record of Labor Law compliance--in other
words, whether the contractor's history of Labor Law compliance and any
adoption by the contractor of preventative compliance measures indicate
that the contracting officer could find the contractor to have a
satisfactory record of integrity and business ethics despite the
violations. The contractor's timely remediation of violations of Labor
Laws is generally the most important factor weighing in favor of a
conclusion that a contractor has a satisfactory record of Labor Law
compliance. The ALCA also considers factors that weigh against a
conclusion that the contractor has a satisfactory record. For example,
as explained more fully below, pervasive violations and violations of
particular gravity, among others, may support such a conclusion. See
Section III(B).
In the third step of the assessment process, the ALCA provides
written advice and analysis to the contracting officer regarding the
contractor's record of Labor Law compliance. The ALCA recommends
whether the contractor's record supports a finding of a satisfactory
record of integrity and business ethics. In cases where the ALCA
concludes that a contractor has an unsatisfactory record of Labor Law
compliance, the ALCA will recommend the negotiation of a labor
compliance agreement or other appropriate action such as notification
of the agency suspending and debarring official. If the ALCA concludes
that a labor compliance agreement is warranted, the ALCA will recommend
whether the agreement should be negotiated before or after the award.
The written analysis supporting the advice describes the ALCA's
classification and weighing of the contractor's Labor Law violations
and includes the rationale for the recommendation. See Section III(C).
While the ALCA provides written analysis and advice, the
contracting officer has the ultimate responsibility and discretion to
determine whether the contractor has a satisfactory record of integrity
and business ethics and is a responsible source. See FAR 22.2004-
2(b)(4).
A. Classifying Labor Law Violations
In the first step of the preaward assessment and advice process,
the ALCA reviews all of the contractor's violations to determine if any
should be classified as ``serious,'' ``repeated,'' ``willful,'' and/or
``pervasive.'' As part of this process, the ALCA monitors SAM
[[Page 58724]]
and FAPIIS for new and updated contractor disclosures of Labor Law
decision information. See FAR 22.2004-1(c)(5). See also section
II(C)(2), above, for a discussion of the information the contractor
must disclose.
Criteria for Classifying Violations
The Order directs the Department to assist agencies in determining
whether administrative merits determinations, arbitral awards or
decisions, or civil judgments (i.e., Labor Law decisions) were issued
for serious, repeated, willful, or pervasive violations of the Labor
Laws. Order, section 4(b)(i). It specifies that the definitions of
these terms should ``incorporate existing statutory standards for
assessing whether a violation is serious, repeated, or willful'' where
they are available. Id. The Order also provides some guidelines for
developing standards where none are provided by statute. See id.
The sections below list criteria under which violations of the
Labor Laws are considered serious, repeated, willful, or pervasive.
These criteria include, for example, whether an agency applied a
particular designation (e.g., ``repeated'' under the OSH Act) to a
violation, whether particular thresholds were met (e.g., $10,000 in
back wages), or whether other specific facts are present (e.g., whether
punitive damages were awarded). A single violation may satisfy the
criteria for more than one classification; for example a single
violation may be both serious and repeated. Multiple violations may
together be classified as pervasive.
ALCAs classify violations based on information that is readily
ascertainable from the Labor Law decisions themselves. ALCAs do not
second-guess or re-litigate enforcement actions or the decisions of
reviewing officials, courts, and arbitrators. While ALCAs and
contracting officers may seek additional information from the
enforcement agencies to provide context, they generally rely on the
information contained in the Labor Law decisions to determine whether
violations are serious, repeated, willful, and/or pervasive under the
definitions provided in this Guidance.
Effect of Reversal or Vacatur of Basis for Classification
If a Labor Law decision or portion thereof that would otherwise
cause a violation to be classified as serious, repeated, willful, and/
or pervasive has been reversed or vacated, the violation should not be
classified as such under the Order. For example, if an OSH Act
violation was originally designated by OSHA as ``serious'' but is later
re-designated as ``other-than-serious,'' the violation should not be
classified as a serious violation under the Order. Likewise, if a prior
Labor Law decision that would otherwise cause a subsequent violation to
be classified as a repeated violation is reversed or vacated, the
subsequent violation should not be classified as a repeated violation.
1. Serious Violations
Of the Federal Labor Laws, only the OSH Act provides a statutory
standard for what constitutes a ``serious'' violation, and this
standard also applies to OSHA-approved State Plans. The other Federal
Labor Laws do not have statutory standards for what constitutes a
serious violation. According to the Order, where no statutory standards
exist, the Department's Guidance for ``serious'' violations must take
into account
the number of employees affected, the degree of risk posed or actual
harm done by the violation to the health, safety, or well-being of a
worker, the amount of damages incurred or fines or penalties
assessed with regard to the violation, and other considerations as
the Secretary finds appropriate.
Order, section 4(b)(i)(B)(1).
Accordingly, a violation is ``serious'' for purposes of the Order
under the following circumstances:
a. For OSH Act or OSHA-approved State Plan violations that are
enforced through citations or equivalent State documents, a violation
is serious if a citation, or equivalent State document, was designated
as serious or an equivalent State designation.
b. For all other violations of the Labor Laws, a violation is
serious if it is readily ascertainable from the Labor Law decision that
the violation involved any one of the following:
i. The violation affected at least 10 workers, and the affected
workers made up 25 percent or more of the contractor's workforce at the
worksite or 25 percent or more of the contractor's workforce overall;
ii. Fines and penalties of at least $5,000 or back wages of at
least $10,000 were due;
iii. The contractor's conduct caused or contributed to the death or
serious injury of one or more workers;
iv. The contractor employed a minor who was too young to be legally
employed or in violation of a Hazardous Occupations Order;
v. The contractor was issued a notice of failure to abate an OSH
Act or OSHA-approved State Plan violation; or the contractor was issued
an imminent danger notice or an equivalent State notice under the OSH
Act or an OSHA-approved State Plan.
vi. The contractor retaliated against one or more workers for
exercising any right protected by any of the Labor Laws;
vii. The contractor engaged in a pattern or practice of
discrimination or systemic discrimination;
viii. The contractor interfered with the enforcement agency's
investigation; or
ix. The contractor breached the material terms of any agreement or
settlement entered into with an enforcement agency, or violated any
court order, any administrative order by an enforcement agency, or any
arbitral award.
This definition is an exhaustive list of the classification
criteria for use in designating Labor Law violations as serious under
the Order. Further guidance for applying these criteria is included
below:
a. OSH Act and OSHA-Approved State Plan Violations Enforced Through
Citations and Equivalent State Documents
Section 17(k) of the OSH Act, 29 U.S.C. 666(k), defines a violation
as serious, in relevant part, ``if there is a substantial probability
that [the hazard created by the violation could result in] death or
serious physical harm . . . unless the employer did not, and could not
with the exercise of reasonable diligence know'' of the existence of
the violation. This standard is used by enforcement agencies to
classify OSH Act and OSHA-Approved State Plan violations that are
enforced through citations or equivalent State documents. In light of
this clear statutory definition and the Order's directive to
incorporate statutory standards where they exist, OSH Act violations
that are enforced through citations are considered serious under the
Order if--and only if--the relevant enforcement agency designated the
citation or equivalent State document as such.\105\
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\105\ The relevant enforcement agency will either be OSHA, a
State Plan agency, or WHD, which enforces violations of the OSH
Act's field sanitation and temporary labor camp standards in States
that do not have a State Plan.
---------------------------------------------------------------------------
The OSH Act also includes prohibitions that are not enforced
through citations or equivalent State documents. Under the
classification process in the Order, such violations are considered
``serious'' if they meet any of the other criteria for serious
violations listed below in subsections (b)(i) through (b)(ix) and
listed above in category (b). For example, the OSH Act
[[Page 58725]]
prohibits retaliating against workers for exercising any right under
the Act. 29 U.S.C. 660(c). OSH Act retaliation violations are enforced
through complaints in Federal court, not through citations; and OSHA
does not make any designation for them (serious or otherwise). As with
retaliation under any of the Labor Laws, such a violation should be
classified as ``serious,'' even though OSHA has not designated it as
``serious.'' See Section III(A)(1)(b)(vi).
b. Other Violations of the Labor Laws
For violations of the Labor Laws other than OSH Act or OSHA-
Approved State Plan violations that are enforced through citations and
equivalent State documents, violations are serious if they meet any one
of the following criteria:
i. Violation Affects at Least 10 Workers Comprising at Least 25 Percent
of the Contractor's Workforce at the Worksite or Overall
Consistent with the Order's directive to consider the number of
employees affected, a violation is serious if it affected at least 10
workers who together made up 25 percent or more of the contractor's
workforce at the worksite or 25 percent or more of the contractor's
workforce overall.
For purposes of this 25 percent threshold, ``workforce'' means all
individuals on the contractor's payroll at the time of the violation,
whether full-time or part-time. It does not include workers of another
entity, unless the underlying violation of the Labor Laws includes a
finding that the contractor is a joint employer of the workers that the
other entity employs at the worksite. For example, assuming no joint
employer relationships exist, if a contractor employs 40 workers at a
worksite, then a violation is serious if it affects at least 10 of the
contractor's workers at the site, even if other companies also employ
an additional 40 workers at the same site.
For purposes of this 25 percent threshold, ``worksite'' means the
physical location or group of locations where the workers affected by
the violations work and where the contractor conducts its business. For
example, if the contractor conducts its business at a single building,
or a single office within an office building, that building or office
will be the worksite. However, if the contractor conducts business
activities in several offices in one building, or in several buildings
in one campus or industrial park, the worksite consists of all of the
offices or buildings in which the business is conducted. On the other
hand, if a contractor has two office buildings in different parts of
the same city, or in different cities, then those office buildings are
considered to be separate worksites. For violations that affect workers
with no fixed worksite, such as construction workers, transportation
workers, workers who perform services at various customers' locations,
and workers who regularly telework, the worksite is the site to which
they are assigned as their home base, from which their work is
assigned, or to which they report.
For purposes of this 25 percent threshold, ``affected workers''
means the workers who were individually impacted by the violation. For
example, affected workers include workers who were not paid wages due;
were denied leave or benefits; were denied a job, a promotion, or other
benefits due to discrimination; or were harmed by an unlawful policy.
ii. Fines, Penalties, and Back Wages
Consistent with the Order's directive to take into account ``the
amount of damages incurred or fines or penalties assessed,'' a
violation is serious if $5,000 or more in fines and penalties, or
$10,000 or more in back wages, were due.
``Fines and penalties'' are monetary penalties imposed by a
government agency. They do not include back wages, compensatory
damages, liquidated damages, or punitive damages. For purposes of
determining whether the $10,000 back wages threshold is met,
compensatory damages, liquidated damages under the FLSA,\106\ and
statutory damages under MSPA should be included as back wages.
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\106\ Liquidated damages under the FLSA are included in the
calculation of back wages because they are compensatory in nature,
intended to serve as a substitute for ``damages too obscure and
difficult of proof for estimate other than by liquidated damages.''
Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-84 (1942).
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The threshold amounts for back wages, fines, and penalties are
measured by the amount ``due.'' This will usually be the amount
originally assessed by an enforcement agency or found due by a court,
arbitrator, or arbitral panel. However, if the original amount is later
reduced by an enforcement agency, arbitrator, arbitral panel, or court,
the reduced amount is used. For example, if the Department files a
civil complaint in an FLSA case seeking $15,000 in back wages but a
court awards only $8,000, then the violation will not be serious under
this criterion because the $8,000 figure falls below the $10,000
threshold for back wages. Similarly, if an administrative merits
determination assesses $6,000 in civil monetary penalties against a
contractor but later the enforcement agency and contractor reach a
settlement for the reduced amount of $4,000, then the underlying
violation is not serious because the settlement amount fell below the
$5,000 threshold for fines and penalties. In contrast, if, for example,
the contractor files for bankruptcy and cannot pay the full amount, or
simply refuses to pay such that the full penalty is never collected,
the original assessed amount is the amount that matters for classifying
the violation under this criterion.
When considering whether these thresholds are met, the total fines
and penalties or the total back wages resulting from the Labor Law
violation should be considered. Thus, for example, where a wage-and-
hour violation affected multiple workers, the back wages due to each
worker involved in the claim must be added together to see if the
cumulative amount meets the $10,000 back-wage threshold. Similarly, in
cases where multiple provisions of a Labor Law have been violated, the
fines, penalties, and back wages due should not be parsed and
separately attributed to each provision violated. For example, if the
Department's FLSA investigation discloses violations of the FLSA's
minimum wage and overtime provisions and back wages are due for both
violations, the total back wages due determines whether the $10,000
threshold is met. Likewise, if an investigation discloses six
violations of the same MSPA provision or violations of six different
MSPA provisions and each violation results in civil monetary penalties
of $1,000, the MSPA violation is serious because the penalties total
$6,000.
This criterion only applies if the Labor Law decision includes an
amount of back wages or fines or penalties. Thus, for example, if an
enforcement agency issues an administrative merits determination that
does not include an amount of fines or penalties assessed or of back
wages due, then an ALCA cannot classify the violation as serious using
this criterion until the amount has been determined. For example, if
the EEOC files a complaint in Federal court seeking back wages but does
not specify the amount, then this criterion cannot be the basis for
classifying the violation as serious, though the violation could be
serious under one of the other listed criteria.
iii. Any Violations That Cause or Contribute to Death or Serious Injury
Consistent with the Order's directive to consider ``the degree of
risk posed or
[[Page 58726]]
actual harm done by the violation to health, safety, or well-being of a
worker,'' any violation of the Labor Laws that causes or contributes to
the death or serious injury of one or more workers is serious under the
Order. For the purpose of this classification criterion, ``serious
injury'' means an injury that requires the care of a medical
professional beyond first-aid treatment or results in more than five
days of missed work.
iv. Employment of Minors Who Are Too Young To Be Legally Employed or in
Violation of a Hazardous Occupations Order
Consistent with the Order's directive to consider ``the degree of
risk posed or actual harm done by the violation to health, safety, or
well-being of a worker,'' any violation of the FLSA's child labor
provisions where the minor is too young to be legally employed or is
employed in violation of any of the Secretary's Hazardous Occupations
Orders is a serious violation. Such violations do not include
situations where minors are permitted to perform the work at issue but
have performed the work outside the hours permitted by law. Rather, it
refers to minors who, by virtue of their age, are legally prohibited
from being employed or are not permitted to be employed to perform the
work at all. Thus, serious violations include, for example: The
employment of any minor under the age of 18 to perform a hazardous non-
agricultural job, any minor under the age of 16 to perform a hazardous
farm job, or any minor under the age of 14 to perform non-farm work
where he or she does not meet a statutory exception otherwise
permitting the work. This reflects the particularly serious dangers
that can result from the prohibited employment of underage minors.
Conversely, it is not a serious violation for the purposes of the Order
where the contractor has employed a 14 or 15 year-old minor in excess
of 3 hours outside school hours on a school day, in a non-hazardous,
non-agricultural job in which the child is otherwise permitted to
work--even though the work violates the FLSA's child labor provisions.
v. Notices of Failure To Abate and Imminent Danger Notices
Under the OSH Act and OSHA-approved State Plans, enforcement
agencies may issue notices of failure to abate and imminent danger
notices. Notices of failure to abate are issued when an employer has
failed to remedy a violative condition despite having received a
citation, unless that citation is being contested. See 29 CFR 1903.18.
A notice of failure to abate a violation is a serious violation because
failing to correct a hazard after receiving formal notification of the
need to do so represents a serious disregard of the law.
Imminent danger notices are issued when ``a danger exists which
could reasonably be expected to cause death or serious physical harm
immediately or before the imminence of such danger can be eliminated
through the enforcement procedures otherwise provided by [the OSH
Act].'' 29 U.S.C. 662(a). Because such notices are issued only for
violations that imminently threaten to cause death or serious physical
harm, imminent danger notices are by definition issued only for serious
violations of the OSH Act, and thus constitute serious violations under
the Order.
vi. Retaliation
Consistent with the Order's directive to consider ``the degree of
risk posed or actual harm done by the violation to health, safety, or
well-being of a worker,'' a violation involving retaliation is a
serious violation. For these purposes, retaliation means that the
contractor has engaged in an adverse employment action against one or
more workers for exercising any right protected by the Labor Laws. An
adverse employment action means conduct that may dissuade a reasonable
worker from engaging in protected activity under the Labor Laws, such
as a discharge, refusal to hire, suspension, demotion, unlawful
harassment, or threats.\107\
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\107\ See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (holding that for purposes of Title VII, retaliation
requires that ``a reasonable employee would have found the
challenged action materially adverse, which in this context means it
well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination'') (internal citations
omitted).
---------------------------------------------------------------------------
Examples of retaliation include, but are not limited to,
disciplining workers for attempting to organize a union; firing or
demoting workers who take leave under the FMLA; and threatening workers
with adverse consequences--such as termination or referral to
immigration or criminal authorities--for reporting potential violations
of Labor Laws, testifying in enforcement matters, or otherwise
exercising any right protected by the Labor Laws. These are serious
violations because they both reflect a disregard by the contractor for
its obligations under the Labor Laws and undermine the effectiveness of
the Labor Laws by making workers reluctant to exercise their rights for
fear of retaliation.
vii. Pattern or Practice of Discrimination or Systemic Discrimination
Consistent with the Order's directive to consider ``the degree of
risk posed or actual harm done by the violation to health, safety, or
well-being of a worker,'' a violation is serious if the contractor
engaged in a pattern or practice of discrimination or systemic
discrimination. This criterion is generally expected to apply to
violations of Executive Order 11246, section 503 of the Rehabilitation
Act, VEVRAA, Title VII, section 6(d) of the FLSA (the Equal Pay Act),
the ADA, and the ADEA.
A pattern or practice of discrimination involves intentional
discrimination against a protected group of applicants or employees
that reflects the employer's standard operating procedure, the regular
rather than the unusual practice,\108\ and not discrimination that
occurs in an isolated fashion.
---------------------------------------------------------------------------
\108\ See Int'l Bhd. of Teamsters v. United States, 431 U.S.
324, 336 (1977).
---------------------------------------------------------------------------
Systemic discrimination involves a pattern or practice, policy, or
class case where the discrimination has a broad impact on an industry,
profession, company, or geographic area. Examples include policies and
practices that effectuate discriminatory hiring barriers; restrictions
on access to higher level jobs in violation of any applicable anti-
discrimination law; unlawful pre-employment inquiries regarding
disabilities; and discriminatory placement or assignments that are made
to comply with customer preferences.
Systemic discrimination also includes policies and practices that
are seemingly neutral but may cause a disparate impact on protected
groups. Examples include pre-employment tests used for selection
purposes; height, weight or lifting requirements or restrictions;
compensation practices and policies; and performance evaluation
policies and practices. Systemic discrimination cases may be, but need
not be, the subject of class action litigation.
viii. Interference With Investigations
Labor Law violations in which the contractor engaged in
interference with the enforcement agency's investigation also are
serious under the Order. Interference can take a number of forms, but
for purposes of this criterion it is limited to violations involving
the following circumstances:
(1) A civil judgment was issued holding the contractor in contempt
for failing to provide information or physical access to an enforcement
agency in the course of an investigation; or
[[Page 58727]]
(2) It is readily ascertainable from the Labor Law decision that
the contractor--
(a) Falsified, knowingly made a false statement in, or destroyed
records to frustrate an investigation under the Labor Laws;
(b) Knowingly made false representations to an investigator; or
(c) Took or threatened to take adverse actions against workers (for
example, termination, reduction in salary or benefits, or referral to
immigration or criminal authorities) for cooperating with or speaking
to government investigators or for otherwise complying with an agency's
investigation (for example, threatening workers if they do not return
back wages received as the result of an investigation).
Like retaliation, interference with investigations is intentional
conduct that frustrates the enforcement of the Labor Laws and therefore
is a serious violation.
ix. Material Breaches and Violations of Settlements, Labor Compliance
Agreements, or Orders
Labor Law violations involving a breach of the material terms of
any settlement, labor compliance agreement, court or administrative
order, or arbitral award are serious violations under the Order. Such
violations are serious because contractors are expected to comply with
orders by a court or administrative agency and to adhere to the terms
of any agreements or settlements into which it enters. A contractor's
failure to do so may indicate that it will similarly disregard its
contractual obligations to, or agreements with, a contracting agency,
which could result in delays, increased costs, and other adverse
consequences. A contractor will not, however, be found to have
committed a serious violation if the agreement, settlement, award, or
order in question has been stayed, reversed, or vacated.
c. Table of Examples
For a table containing selected examples of serious violations, see
Appendix A.
2. Repeated Violations
The Order provides that the standard for repeated should
``incorporate existing statutory standards'' to the extent such
standards exist. Order, section 4(b)(i)(A). It further provides that,
where no statutory standards exist, the standards for repeated should
take into account ``whether the entity has had one or more additional
violations of the same or a substantially similar requirement in the
past 3 years.'' Id. section 4(b)(i)(B)(2). None of the Labor Laws
contains an explicit statutory definition of the term ``repeated.''
Accordingly, a violation is ``repeated'' under the Order if:
a. For a violation of the OSH Act or an OSHA-approved State Plan
that was enforced through a citation or an equivalent State document,
the citation at issue was designated as ``repeated,'' ``repeat,'' or
any equivalent State designation and the prior violation that formed
the basis for the repeated violation became a final order of the OSHRC
or equivalent State agency no more than 3 years before the repeated
violation;
b. For all other Labor Law violations, the contractor has committed
a violation that is the same as or substantially similar to a prior
violation of the Labor Laws that was the subject of a separate
investigation or proceeding arising from a separate set of facts, and
became uncontested or adjudicated within the previous 3 years. The
following is an exhaustive list of violations that are substantially
similar to each other for these purposes:
1. For the FLSA:
i. Any two violations of the FLSA's child labor provisions; or
ii. Any two violations of the FLSA's provision requiring break time
for nursing mothers.
2. For the FLSA, DBA, SCA, and Executive Order 13658:
i. Any two violations of these statutes' minimum wage, subminimum
wage, overtime, or prevailing wages provisions, even if they arise
under different statutes.
3. For the FMLA:
i. Any two violations of the FMLA's notice requirements; or
ii. Any two violations of the FMLA other than its notice
requirements.
4. For the MSPA:
i. Any two violations of the MSPA's requirements pertaining to
wages, supplies, and working arrangements;
ii. Any two violations of the MSPA's requirements related to health
and safety;
iii. Any two violations of the MSPA's disclosure and recordkeeping
requirements; or
iv. Any two violations related to the MSPA's registration
requirements.
5. For the NLRA:
i. Any two violations of the same numbered subsection of section
8(a) of the NLRA.
6. For Title VII, section 503 of the Rehabilitation Act of 1973,
the ADA, the ADEA, section 6(d) of the FLSA (known as the Equal Pay
Act, 29 U.S.C. 206(d)), Executive Order 11246 of September 24, 1965,
the Vietnam Era Veterans' Readjustment Assistance Act of 1972, and the
Vietnam Era Veterans' Readjustment Assistance Act of 1974:
i. Any two violations, even if they arise under different statutes,
if both violations involve:
1. the same protected status, and
2. at least one of the following elements in common:
a. the same employment practice, or,
b. the same worksite.
7. For all of the Labor Laws, including those listed above, even if
the violations arise under different statutes:
i. Any two violations involving retaliation;
ii. Any two failures to keep records required under the Labor Laws;
or
iii. Any two failures to post notices required under the Labor
Laws.
Further guidance for applying these criteria is included below:
a. OSH Act and OSHA-Approved State Plan Violations Enforced Through
Citations or Equivalent State Documents
The terms ``repeated'' and ``repeat'' have well-established
meanings under the OSH Act with regard to violations that are enforced
through citations. Such violations are ``repeated'' ``if, at the time
of the alleged repeated violation, there was [an Occupational Safety
and Health Review Commission] final order against the same employer for
a substantially similar violation.'' Potlatch Corp., 7 O.S.H. Cas.
(BNA) 1061 (O.S.H.R.C. 1979). This term is generally defined similarly
under OSHA-approved State Plans.\109\
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\109\ See generally ``What Constitutes `Repeated' or `Willful'
Violation for Purposes of State Occupational Safety and Health
Acts,'' 17 A.L.R.6th 715 (originally published in 2006).
---------------------------------------------------------------------------
As such, under the OSH Act or an OSHA-approved State Plan, if a
citation or equivalent State document designates a violation as
``repeated,'' ``repeat,'' or any equivalent State designation, the
violation will be repeated for purposes of the Order provided that the
prior violation became a final order of OSHRC or the equivalent State
agency within 3 years of the repeated violation. Even though, under
current OSHA policy, repeated violations take into account a 5-year
period, the 3-year timeframe conforms to the Order's direction that the
standards for repeated violations should take into account ``whether
the entity has had one or more additional violations of the same or a
substantially similar requirement in the past 3 years.'' Order, section
4(b)(i)(B)(2).
b. All Other Violations
For all Labor Law violations other than OSH Act and OSHA-approved
State Plan violations enforced through
[[Page 58728]]
citations or equivalent State documents, a violation is repeated if it
is the same as, or substantially similar to, a prior violation of the
Labor Laws by the contractor that was the subject of a separate
investigation or proceeding arising from a separate set of facts, and
became uncontested or adjudicated within the previous 3 years. These
terms are explained in greater detail below.
i. Prior Violation Must Have Been Uncontested or Adjudicated
For a violation to be classified as ``repeated,'' a prior violation
must be either uncontested or adjudicated. Only the prior violation
need be uncontested or adjudicated when determining whether a violation
is repeated. The subsequent violation--the one to be classified as
``repeated''--does not need to have been uncontested or adjudicated.
These terms are explained below.
An uncontested violation is a violation that is reflected in:
(2) A Labor Law decision that the contractor has not contested or
challenged within the time limit provided in the Labor Law decision or
otherwise required by law; or
(3) A Labor Law decision following which the contractor agrees to
at least some of the relief sought by the agency in its enforcement
action.
An adjudicated violation is one that is reflected in:
(1) a civil judgment;
(2) an arbitral award or decision; or
(3) an administrative merits determination that constitutes a final
agency order by an administrative adjudicative authority following a
proceeding in which the contractor had an opportunity to present
evidence or arguments on its behalf.
As used in the above definition of an adjudicated violation,
``administrative adjudicative authority'' means an administrative body
empowered to hear adversary proceedings, such as the ARB, the OSHRC, or
the NLRB. ALJs are also administrative adjudicative authorities;
however, their decisions will only constitute adjudicated violations if
they are adopted as final agency orders. This typically will occur, for
example, if the party subject to an adverse decision by an ALJ does not
file a timely appeal to the agency's administrative appellate body,
such as those referenced above.
For an ALCA to classify a subsequent violation as ``repeated,'' the
prior violation must be uncontested or adjudicated before the date of
the Labor Law decision for the subsequent violation.
An example illustrating the above principles follows:
When WHD sends a contractor a letter finding that the contractor
violated the DBA, if the contractor wishes to contest the violation, it
must request a hearing in writing within 30 days. 29 CFR 5.11(b)(2). If
the contractor timely requests a hearing, then the matter may proceed
to a hearing before an ALJ, id. 5.11(b)(3), and, if necessary, the
contractor may appeal to the ARB, id. 6.34. While these proceedings are
pending, WHD's letter, by itself, cannot be a prior violation because
it is neither uncontested nor adjudicated. Thus, if the contractor,
during the pendency of those proceedings, receives a second letter from
WHD finding that the contractor committed a substantially similar
violation, the second violation would not be classified as repeated.
However, once the ARB renders its decision, representing a final order
of the Department of Labor, the first violation is considered
adjudicated. If, after the ARB decision, the contractor receives a
second letter about a second substantially similar violation, that
second violation would be classified as a repeated violation under the
Order, regardless of whether the second violation is uncontested or
adjudicated.
The first letter may also become ``uncontested'' if the contractor
agrees in a settlement to pay some or all of the back wages due. Thus,
if the contractor agrees to such a settlement at any time after
receiving the first letter, and the contractor subsequently receives a
second letter from WHD finding that the contractor committed a second,
substantially similar violation, then the second violation would be
classified as repeated, regardless of whether the second violation is
uncontested or adjudicated.
This framework is intended to ensure that violations will only be
classified as repeated when the contractor has had the opportunity--
even if not exercised--to present facts or arguments in its defense
before an adjudicative authority concerning the prior violation.
ii. 3-Year Look-Back Period
For a violation to be classified as ``repeated,'' the prior
violation must have become uncontested or adjudicated no more than 3
years prior to the date of the repeated violation--the 3-year look-back
period. The ``date'' of the repeated violation is the date of the
relevant civil judgment, arbitral award or decision, or administrative
merits determination (e.g. Labor Law decision) is issued.\110\ For
example, if the contractor's offer is dated March 1, 2019, then the
contractor must disclose all Labor Law decisions within the 3-year
disclosure period prior to the date of the offer, between March 1,
2016, and March 1, 2019. However, if one of the contractor's disclosed
decisions is dated June 8, 2018, then the 3-year look-back period for
determining whether that violation identified in the decision should be
classified as repeated extends back to June 8, 2015.
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\110\ This means that the 3-year timeframe for determining
whether a violation is repeated (the 3-year look-back period) is
different from the 3-year timeframe within which all Labor Law
decisions must be disclosed under the Order (the 3-year disclosure
period), which is the 3 years prior to the date of the contractor's
offer.
---------------------------------------------------------------------------
The relevant date for determining whether a prior violation falls
within the 3-year look-back period is the date that the prior violation
becomes uncontested or adjudicated. A prior violation becomes
uncontested either on the date on which any time period to contest the
violation has expired, or on the date of the contractor's agreement to
at least some of the relief sought by the agency in its enforcement
action (e.g., the date a settlement agreement is signed), whichever is
applicable. A prior violation becomes adjudicated on the date on which
the violation first becomes a civil judgment, arbitral award or
decision, or a final agency order by an administrative adjudicative
authority following a proceeding in which the contractor had an
opportunity to present evidence or arguments on its behalf. Thus, for a
violation that is the subject of successive adjudications, the dates of
subsequent appellate decisions are not relevant.
For example, if OFCCP issues a show cause notice to a contractor on
January 1, 2017, and the contractor contests the violation, resulting
in an ALJ determination on January 1, 2018, an ARB determination on
January 1, 2019, a civil judgment by a district court on January 1,
2020, and a civil judgment by a court of appeals on January 1, 2021,
then the relevant date of the prior violation would be the January 1,
2019 date of the ARB order. This date is the relevant date because this
is the date on which the violation becomes a final agency order by the
ARB, and therefore first becomes an adjudicated violation--even though
it is later adjudicated again in the civil judgments of the district
court and court of appeals. That ARB order could therefore serve as a
prior violation for any subsequent substantially similar violation for
which a Labor Law decision is issued after January 1, 2019 and prior to
January 1, 2022.
[[Page 58729]]
iii. Separate Investigations or Proceedings
The prior violation must be the subject of a separate investigation
or proceeding arising from a separate set of facts. Thus, for example,
if one investigation discloses that a contractor violated the FLSA and
the OSH Act, or committed multiple violations of any one of the Labor
Laws, such violations would not be ``repeated'' simply because of the
other violations found in the same investigation.
iv. Prior Violation Must Be Committed by the Same Legal Entity
The prior violation must have been committed by the contractor,
considered on a company-wide basis. Thus, a prior violation by any
establishment of a multi-establishment company can render subsequent
violations repeated, provided the other relevant criteria are
satisfied, as long as the violation was committed by the same legal
entity.\111\ As discussed below, the relative size of the contractor as
compared to the number of violations may be a mitigating factor.
---------------------------------------------------------------------------
\111\ However, as noted below, as to the anti-discrimination
Labor Laws specifically, whether a violation was committed at the
same worksite as a prior violation is one factor that can affect
whether the two violations are substantially similar to each other.
---------------------------------------------------------------------------
v. Substantially Similar Violations
The prior violation must be the same as or substantially similar to
the violation designated as repeated. Substantially similar does not
mean ``exactly the same.'' United States v. Washam, 312 F.3d 926, 930-
31 (8th Cir. 2002). Rather, two things may be substantially similar
where they share ```essential elements in common.''' Alameda Mall, L.P.
v. Shoe Show, Inc., 649 F.3d 389, 392-93 (5th Cir. 2011) (quoting the
dictionary definition of the term).
Whether violations fall under the same Labor Law is not necessarily
determinative of whether the requirements underlying those violations
are substantially similar. Rather, as set forth in greater details
below, whether a violation is substantially similar to a past violation
turns on the nature of the violation and underlying obligation itself.
The following definitions outline when, under the Order, a violation
will be substantially similar to a prior violation (with the exception
of OSH Act and OSHA State Plan violations enforced through a citation,
which are addressed above):
FLSA
Any two violations of the FLSA's child labor provisions are
substantially similar to each other. This reflects the treatment of
such violations as ``repeated'' for purposes of civil monetary
penalties in 29 CFR 579.2. Additionally, any two violations of the
FLSA's provision requiring break time for nursing mothers are
substantially similar to each other.
FLSA, DBA, SCA, and Executive Order 13658
Any violations of the minimum wage, subminimum wage, overtime, or
prevailing wage requirements of the FLSA, DBA, SCA, and Executive Order
13658 are substantially similar to each other, even if the violations
arise under different statutes.\112\
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\112\ This treatment is consistent with the FLSA's regulations,
which treat any two minimum wage or overtime violations as
``repeated.'' See 29 CFR 578.3(b). This regulatory provision
recognizes that two failures to pay wages mandated by law are
substantially similar, even if they involve different specific
obligations.
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FMLA
Any two FMLA violations are substantially similar to each other
under the Order, with the exception of violations of the notice
requirements. Thus, denial of leave, retaliation, discrimination,
failure to reinstate an employee to the same or an equivalent position,
and failure to maintain group health insurance are all substantially
similar, given that each violation involves either denying FMLA leave
or penalizing an employee who takes leave. Conversely, any two
instances of failure to provide notice--such as failure to provide
general notice via a poster or a failure to notify individual employees
regarding their eligibility status, rights, and responsibilities--are
substantially similar to each other, but not to other violations of the
FMLA.
MSPA
For violations of the MSPA, multiple violations of the statute's
requirements pertaining to wages, supplies, and working arrangements
(including, for example, failure to pay wages when due, prohibitions
against requiring workers to purchase goods or services solely from
particular contractors, employers, or associations, and violating the
terms of any working arrangements) are substantially similar to each
other for purposes of the Order. Likewise, violations of any of the
MSPA's requirements related to health and safety, including both
housing and transportation health and safety, are substantially similar
to each other. Violations of the statute's disclosure and recordkeeping
requirements are also substantially similar to each other. Finally,
multiple violations related to the MSPA's registration requirements are
substantially similar to each other.
NLRA
For NLRA violations, any two violations of the same numbered
subsection of section 8(a) of the NLRA, 29 U.S.C. 158(a), are
substantially similar. For example, any two violations of section
8(a)(3), which prohibits employers from discriminating against
employees for engaging in or refusing to engage in union activities,
are substantially similar. Likewise, any two violations of section
8(a)(2), which prohibits employers from dominating or assisting labor
unions through financial support or otherwise, are substantially
similar to each other.
The Anti-Discrimination Labor Laws
For purposes of the anti-discrimination Labor Laws,\113\ violations
are substantially similar if they involve both of the following
elements, even if they arise under different statutes:
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\113\ Title VII, section 503 of the Rehabilitation Act of 1973,
the ADA, the ADEA, section 6(d) of the FLSA (known as the Equal Pay
Act, 29 U.S.C. 206(d)), Executive Order 11246 of September 24, 1965,
the Vietnam Era Veterans' Readjustment Assistance Act of 1972, and
the Vietnam Era Veterans' Readjustment Assistance Act of 1974.
---------------------------------------------------------------------------
(1) the same protected status, and
(2) at least one of the following elements in common:
a. the same employment practice, e.g., hiring, firing, harassment,
compensation, or,
b. the same worksite.
With regard to the first element, violations are considered to
involve the ``same'' protected status as long as the same status is
present in both violations, even if other protected statuses may be
involved as well. For example, if the first violation involves
discrimination on the basis of national origin and the second violation
involves discrimination on the basis of national origin and race, the
violations are substantially similar because they involve the same
protected status, namely, discrimination on the basis of national
origin. Additionally, in this context, violations involving
discrimination on the bases of sex, pregnancy, gender identity
(including transgender status), and sex stereotyping are considered to
involve the ``same'' protected status for the purpose of determining
whether violations are substantially similar under the Order.
For the purpose of determining whether violations involve the same
[[Page 58730]]
worksite, the definition of ``worksite'' set forth in the discussion of
the 25 percent criterion for a serious violation should be used, see
Section III(A)(1)(b)(i), except that any two company-wide violations
are also considered to involve the same worksite.
All of the Labor Laws
For all of the Labor Laws, including those referenced above, any
two violations involving retaliation are substantially similar.
Likewise, any two failures to keep records required under the Labor
Laws are substantially similar. And, any two failures to post notices
required under the Labor Laws are substantially similar.
c. Table of Examples
For a table containing selected examples of repeated violations,
see Appendix B.
3. Willful Violations
The Order provides that the standard for what constitutes a
``willful'' violation should ``incorporate existing statutory
standards'' to the extent such standards exist. Order, section
4(b)(i)(A). The Order further provides that, where no statutory
standards exist, the standard for willful should take into account
``whether the entity knew of, showed reckless disregard for, or acted
with plain indifference to the matter of whether its conduct was
prohibited by the requirements of the [Labor Laws].'' Order, section
4(b)(i)(B)(3).
Accordingly, a violation is ``willful'' under the Order if:
a. For purposes of OSH Act or OSHA-approved State Plan violations
that are enforced through citations or equivalent State documents, the
citation or equivalent State document was designated as willful or any
equivalent State designation (e.g., ``knowing'');
b. For purposes of the minimum wage, overtime, and child labor
provisions of the FLSA, 29 U.S.C. 206-207, 212, the administrative
merits determination sought or assessed back wages for greater than 2
years or sought or assessed civil monetary penalties for a willful
violation, or there was a civil judgment or arbitral award or decision
finding that the contractor's violation was willful;
c. For purposes of the ADEA, the enforcement agency, court,
arbitrator, or arbitral panel assessed or awarded liquidated damages;
d. For purposes of Title VII or the ADA, the enforcement agency,
court, arbitrator, or arbitral panel assessed or awarded punitive
damages for a violation where the contractor engaged in a
discriminatory practice with malice or reckless indifference to the
federally protected rights of an aggrieved individual; or
e. For purposes of any other violations of the Labor Laws, it is
readily ascertainable from the findings of the relevant enforcement
agency, court, arbitrator, or arbitral panel that the contractor knew
that its conduct was prohibited by any of the Labor Laws or showed
reckless disregard for, or acted with plain indifference to, whether
its conduct was prohibited by one or more requirements of the Labor
Laws.
In the above definition, the Department incorporates existing
standards, statutory or otherwise, from the Labor Laws that are
indicative of willfulness as defined under the Order.
Further guidance for applying these criteria is included below:
a. OSH Act or OSHA-Approved State Plan Violations Enforced Through
Citations or Equivalent State Documents
The term ``willful'' has a well-established meaning under the OSH
Act that is consistent with the standard provided in the Order. Under
the OSH Act, a violation that is enforced through a citation or
equivalent State document will be designated as willful where an
employer has demonstrated either an intentional disregard for the
requirements of the OSH Act or a plain indifference to its
requirements. See A.E. Staley Mfg. Co. v. Sec'y of Labor, 295 F.3d
1341, 1351-52 (D.C. Cir. 2002). For example, if an employer knows that
specific steps must be taken to address a hazard, but substitutes its
own judgment for the requirements of the legal standard, the violation
will be designated as willful. OSHA-approved State Plans generally use
this term in a similar way.\114\ As such, as noted above, under the OSH
Act or an OSHA-approved State Plan, if a citation or equivalent State
document designates a violation as ``willful'' or an equivalent State
designation (e.g., ``knowing''), the violation will be willful for
purposes of the Order.
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\114\ See generally Randy Sutton, ``What Constitutes `Repeated'
or `Willful' Violation for Purposes of State Occupational Safety and
Health Acts,'' 17 A.L.R.6th 715 (originally published in 2006).
---------------------------------------------------------------------------
b. Violations of the Minimum Wage, Overtime, and Child Labor Provisions
of the FLSA
The term ``willful'' has a well-established meaning under the FLSA
that is consistent with the standard provided in the Order. Under the
minimum wage, overtime, and child labor provisions of the FLSA, 29
U.S.C. 206-207, 212, a violation is willful where the employer knew
that its conduct was prohibited by the FLSA or showed reckless
disregard for the FLSA's requirements. See 29 CFR 578.3(c)(1), 579.2;
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). For example,
an employer that requires workers to ``clock out'' after 40 hours in a
workweek and then continue working ``off the clock'' or pays workers
for 40 hours by check and then pays them in cash at a straight-time
rate for hours worked over 40 commits a willful violation of the FLSA's
overtime requirements. These actions show knowledge of the FLSA's
requirements to pay time-and-a-half for hours worked over 40 and an
attempt to evade that requirement by concealing records of the workers'
actual hours worked.
Under the minimum wage and overtime provisions of the FLSA, willful
violations are grounds for administrative assessments of back wages for
greater than 2 years, and for the assessment of civil monetary
penalties. See 29 U.S.C. 216(e)(2); cf. 29 U.S.C. 255(a). Additionally,
under the FLSA's child labor provisions, willful violations are also
grounds for increased civil monetary penalties. See 29 U.S.C.
216(e)(1)(A)(ii); 29 CFR 579.5(c). Accordingly, administrative
assessments of back wages for greater than 2 years and assessments of
civil monetary penalties for willful violations are understood to
reflect a finding of willfulness and therefore will be considered
indicative of willfulness under the Order.\115\ Courts and arbitrators
must also make findings of willfulness in order to extend the statute
of limitations beyond 2 years under the FLSA's minimum wage and
overtime provisions, or to affirm assessments of civil monetary
penalties of the FLSA's minimum wage, overtime, or child labor
provisions. See 29 U.S.C. 216(e)(1)(A)(ii), 216(e)(2), 216(e)(3)(C),
255(a). Thus, any civil judgment or arbitral award or decision finding
that the contractor committed a willful FLSA violation will be
classified as a willful violation under the Order.
---------------------------------------------------------------------------
\115\ Civil monetary penalties may be assessed under the FLSA's
minimum wage and overtime provisions for violations that are either
repeated or willful, and civil monetary penalties may be assessed
for child labor violations even in the absence of a repeated or
willful violation. Only civil monetary penalties involving willful
violations will constitute willful violations under the Order.
---------------------------------------------------------------------------
c. Violations of the ADEA
The term ``willful'' also has a well-established meaning under the
ADEA that is consistent with the standard provided in the Order. Under
the ADEA,
[[Page 58731]]
a violation is willful when the employer knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the
ADEA. See Trans World Airlines v. Thurston, 469 U.S. 111, 126 (1985).
Willful violations are required for liquidated damages to be assessed
or awarded under the ADEA. See 29 U.S.C. 626(b). Accordingly, any
violation of the ADEA in which the enforcement agency, court,
arbitrator, or arbitral panel assessed or awarded liquidated damages is
understood to reflect a finding of willfulness and therefore will be
considered indicative of a willful violation under the Order.
d. Title VII and the ADA
Violations of Title VII or the ADA are ``willful'' under the Order
if the enforcement agency, court, arbitrator, or arbitral panel
assessed or awarded punitive damages for a violation where the
contractor engaged in a discriminatory practice with malice or reckless
indifference to the federally protected rights of an aggrieved
individual. Punitive damages are appropriate in cases under Title VII
or the ADA where the employer engaged in intentional discrimination
with ``malice or reckless indifference to the federally protected
rights of an aggrieved individual.'' 42 U.S.C. 1981a(b)(1). This
standard is analogous to the standard for willful violations in the
Order. An employer acts with malice or reckless indifference if a
managerial agent of the employer, acting within the scope of
employment, makes a decision that was in the face of a perceived risk
of violating Federal law, and the employer cannot prove that the
manager's action was contrary to the employer's good faith efforts to
comply with Federal law. See Kolstad v. American Dental Ass'n, 527 U.S.
526, 536, 545 (1999). For example, if a manager received a complaint of
sexual harassment but failed to report it or investigate it--and the
employer's anti-harassment policy was ineffective in protecting the
employees' rights or the employer did not engage in good faith efforts
to educate its managerial staff about sexual harassment--then the
violation would warrant punitive damages and qualify as ``willful''
under the Order. See, e.g., EEOC v. Mgmt. Hospitality of Racine, Inc.,
666 F.3d 422, 438-39 (7th Cir. 2012).
e. Any Other Violations of the Labor Laws
For any violations of Labor Laws other than violations discussed
above in subsections (a) through (d), a violation is willful for
purposes of the Order if it is readily ascertainable from the findings
of the relevant enforcement agency, court, arbitrator, or arbitral
panel that the contractor knew that its conduct was prohibited by the
Labor Laws or showed reckless disregard for, or acted with plain
indifference to, whether its conduct was prohibited by Labor Laws.\116\
---------------------------------------------------------------------------
\116\ Nothing in this guidance is intended to affect the
terminology or operation of FAR part 22.4.
---------------------------------------------------------------------------
A contractor need not act with malice for a violation to be
classified as willful; rather, the focus is on whether it is readily
ascertainable from the Labor Law decision that, based on all of the
facts and circumstances discussed in the findings, the contractor acted
with knowledge of or reckless disregard for its legal requirements. The
Labor Law decision need not include the specific words ``knowledge,''
``reckless disregard,'' or ``plain indifference''; however, it must be
readily ascertainable from the factual findings or legal conclusions
contained in the decision that the violation meets one of these
conditions, as described further below.
Knowledge
The first circumstance where willfulness will be found is where it
is readily ascertainable from the Labor Law decision that the
contractor knew that its conduct was prohibited by law, yet engaged in
the conduct anyway. Knowledge can be inferred from the factual findings
or legal conclusions contained in the Labor Law decision. Thus,
willfulness will typically be found where it is readily ascertainable
from the Labor Law decision that a contractor was previously advised by
responsible government officials that its conduct was not lawful, but
engaged in the conduct anyway. Repeated violations may also be willful
to the extent that the prior proceeding demonstrates that the
contractor was put on notice of its legal obligations, only to later
commit the same or a substantially similar violation. If it is readily
ascertainable from the Labor Law decision that a contractor has a
written policy or manual that describes a legal requirement, and then
knowingly violates that requirement, the violation is also likely to be
willful.
For example, if it is readily ascertainable from the Labor Law
decision that a contractor was warned by an official from the
Department that the housing it was providing to migrant agricultural
workers did not comply with required safety and health standards, and
that the contractor then failed to make the required repairs or
corrections, such findings demonstrate that the contractor engaged in a
willful violation of MSPA. Likewise, if the Labor Law decision
indicates that a contractor's employee handbook states that it provides
unpaid leave to employees with serious health conditions as required by
the FMLA, but the contractor refuses to grant FMLA leave or erects
unnecessary hurdles to employees requesting such leave, that violation
would also likely be willful. Certain acts, by their nature, are
willful, such as conduct that demonstrates an attempt to evade
statutory responsibilities, including the falsification of records,
fraud or intentional misrepresentation in the application for a
required certificate, payment of wages ``off the books,'' or
``kickbacks'' of wages from workers back to the contractor.
Reckless Disregard or Plain Indifference
The second type of willful violation is where it is readily
ascertainable from the Labor Law decision that a contractor acted with
reckless disregard or plain indifference toward the Labor Laws'
requirements. These terms refer to circumstances where a contractor
failed to make sufficient efforts to learn or understand whether it was
complying with the law. Although merely inadvertent or negligent
conduct would not meet this standard, ignorance of the law is not a
defense to a willful violation. The adequacy of a contractor's inquiry
is evaluated in light of all of the facts and circumstances, including
the complexity of the legal issue and the sophistication of the
contractor. In other words, the more obvious the violation, and the
longer the contractor has been in business, the more likely it will be
that a violation will be found willful. Reckless disregard or plain
indifference may also be shown where a contractor was aware of plainly
obvious violations and failed to take an appropriate action. For
example, an employer who employs a 13-year-old child in an obviously
dangerous occupation, such as operating a forklift, is acting in
reckless disregard for the law even if it cannot be shown that the
employer actually knew that doing so was in violation of one of the
Secretary's Hazardous Occupation Orders related to child labor.
Reckless disregard or plain indifference will also be found if a
contractor acted with purposeful lack of attention to its legal
requirements, such as if management-level officials are made aware of a
health or safety requirement but make little or no effort to
communicate that requirement to lower-level supervisors and employees.
[[Page 58732]]
f. Table of Examples
For a table containing selected examples of willful violations, see
Appendix C.
4. Pervasive Violations
The Order provides that, where no statutory standards exist, the
standard for pervasive violations should take into account ``the number
of violations of a requirement or the aggregate number of violations of
requirements in relation to the size of the entity.'' Order, section
4(b)(i)(B)(4). No statutory standards for ``pervasive'' exist under the
Labor Laws.
Violations are ``pervasive'' if they reflect a basic disregard by
the contractor for the Labor Laws as demonstrated by a pattern of
serious and/or willful violations, continuing violations, or numerous
violations. Violations must be multiple to be pervasive, although
having multiple violations does not necessarily mean the violations are
pervasive. The number of violations necessarily depends on the size of
the contractor, because larger employers, by virtue of their size, are
more likely to have multiple violations. To be pervasive, the
violations need not be of the same or similar requirements of the Labor
Laws. Pervasive violations may exist where the contractor commits
multiple violations of the same Labor Law, regardless of their
similarity, or violations of more than one of the Labor Laws. This
classification is intended to identify those contractors whose numerous
violations of Labor Laws indicate that they may view sanctions for
their violations as merely part of the ``cost of doing business,'' an
attitude that is inconsistent with the level of responsibility required
by the FAR.
Pervasive violations differ from repeated violations in a number of
ways. First, unlike repeated violations, pervasive violations need not
be substantially similar, or even similar at all, as long as each
violation involves one of the Labor Laws. Additionally, pervasive
violations, unlike repeated violations, may arise in the same
proceeding or investigation. For example, a small tools manufacturer
with about 50 employees in a single location that does not have a
process for identifying and eliminating serious safety-and-health
hazards may be cited multiple times for serious violations under the
OSH Act--once for improper storage of hazardous materials, once for
failure to provide employees with protective equipment, once for
inadequate safeguards on heavy machinery, once for lack of fall
protection, once for insufficient ventilation, once for unsafe noise
exposure, and once for inadequate emergency exits. While these
violations are sufficiently different that they would not be designated
as repeated violations by OSHA and would therefore not be repeated
violations under the Order, such a high number of serious workplace
safety violations relative to the size of a small company with only a
single location would likely demonstrate a basic disregard by the
company for workers' safety and health, particularly if the company
lacked a process for identifying and eliminating serious safety-and-
health hazards. As such, these violations would likely be considered
pervasive.
In addition, violations across multiple Labor Laws--especially when
they are serious, repeated, or willful--are an indication of pervasive
violations that warrant careful examination by the ALCA. For example, a
medium-sized company with about 1,000 employees that provides
janitorial services at Federal facilities may be found to have violated
the SCA for failure to pay workers their required wages, Title VII for
discrimination in hiring on the basis of national origin, the NLRA for
demoting workers who are seeking to organize a union, and the FMLA for
denying workers unpaid leave for serious health conditions. While these
violations are substantively different from each other, a medium-sized
company that violates so many Labor Laws is demonstrating a basic
disregard for its legal obligations to its workers and is likely
committing pervasive violations.
Whereas a repeated violation may be found anytime a contractor
commits two or more substantially similar violations, there is no
specific numeric threshold for pervasive violations. The number of
violations that will result in a classification of pervasive will
depend on the size of the contractor, as well as the nature and
severity of the violations themselves.
A series of repeated violations may, however, become pervasive,
particularly if it demonstrates that a contractor, despite knowledge of
its violations, fails to make efforts to change its practices and
continues to violate the law. For example, if WHD issued several
administrative merits determinations over the course of 3 years finding
that a contractor illegally employed underage workers, and despite
receiving these notices, the contractor failed to make efforts to
change its child labor practices and continued to violate the FLSA's
child labor provisions, the series of violations would likely be
considered pervasive.
For smaller companies, a smaller number of violations may be
sufficient for a finding of pervasiveness, while for large companies,
pervasive violations will typically require either a greater number of
violations or violations affecting a significant number or percentage
of a company's workforce. For example, if OFCCP finds that a large
contractor with 50,000 employees that provides food services at Federal
agencies nationwide used pre-employment screening tests for most jobs
at the company's facilities that resulted in Hispanic workers being
hired at a significantly lower rate than non-Hispanic workers over a 5-
year period, and in addition, WHD finds that the company failed to
comply with the SCA's requirements to pay its workers prevailing wages
at many of its locations, such violations would likely be pervasive,
notwithstanding the large size of the contractor, because the
contractor's numerous serious violations spanned most of its locations
and affected many of its workers. In contrast, had the company only
engaged in these prohibited practices with respect to some of its
hiring at only one a few of its locations, such violations might not
necessarily be considered pervasive.
Similarly, if a large company with 5,000 employees that provides
uniform services to Federal agencies in several States is cited 10
times for serious OSHA violations affecting most of its inspected
locations over the span of a year, and a number of the citations
involve the failure to abate extremely dangerous conditions--and as a
result the company is placed on OSHA's Severe Violator Enforcement
Program--such violations would likely be pervasive because the sheer
number of violations over such a short period of time is evidence that
the company is ignoring persistent threats to workers' safety, fails to
treat safety as a serious problem, and is acting in disregard of its
legal obligations. In contrast, if the violations affected only a few
of the company's facilities, or if the company had acted quickly to
abate any violations, the violations might not necessarily be
considered pervasive.
An additional relevant factor in determining whether violations are
pervasive is the involvement of higher-level management officials. When
Labor Laws are violated with either the explicit or implicit approval
of higher-level management, such approval signals that future
violations will be tolerated or condoned, and may dissuade workers from
reporting violations or raising complaints. Thus, to the extent that
higher-level management officials were involved in
[[Page 58733]]
violations themselves (such as discrimination in hiring by an
executive, or a decision by an executive to cut back on required safety
procedures that led to violations of the OSH Act) or knew of violations
and failed to take appropriate actions (such as ignoring reports or
complaints by workers), the violations are more likely to be deemed
pervasive. By using the term ``higher-level management,'' the
Department agrees that a violation is unlikely to be pervasive for this
reason where the manager involved is a low-level manager (such as a
first-line supervisor) acting contrary to a strong company policy, and
the company responds with appropriate remedial action.
For example, if the vice president of a construction company
directs a foreman not to hire Native American workers, and as a result
the company is later found to have committed numerous Title VII
violations against job applicants, such violations are likely to be
pervasive. Likewise, if the chief safety officer at a chemical plant
fields complaints from many workers about several unsafe working
conditions but then fails to take action to remedy the unsafe
conditions, such violations are also likely to be pervasive because the
known dangerous working conditions were disregarded by a high-level
company official despite being reported by many workers at the plant.
Such behavior reflects a basic disregard for worker health and safety.
For a table containing additional examples of pervasive violations,
see Appendix D.
B. Weighing Labor Law Violations and Mitigating Factors
As discussed above, an ALCA's assessment of a contractor's Labor
Law violations involves a three-step process: (1) Classifying
violations to determine whether any are serious, repeated, willful,
and/or pervasive; (2) weighing any serious, repeated, willful, and/or
pervasive violations in light of the totality of the circumstances,
including any mitigating factors that the contractor has identified;
and then (3) providing the contracting officer with written analysis
and advice regarding the contractor's record of Labor Law compliance.
In analyzing a contractor's record during the weighing process, an ALCA
does not need to give equal weight to two violations that receive the
same classification. Some violations may have more significant
consequences on a contractor's workforce or more potential to disrupt
contractor performance than others.
In the weighing process, the ALCA considers many factors as a part
of an analysis of whether the contractor has a satisfactory record of
Labor Law compliance--in other words, whether the contractor's history
of Labor Law compliance and any adoption by the contractor of
preventative compliance measures indicate that the contracting officer
could find the contractor to have a satisfactory record of integrity
and business ethics. In considering the totality of the circumstances,
the ALCA considers information about a contractor's violations obtained
from enforcement agencies, as well as potentially mitigating
information about those violations that a contractor has provided for
review. In addition, although ALCAs review contractors' disclosed
decisions, ALCAs will also consider Labor Law decisions that should
have been disclosed by contractors under the Order, but were not. Such
undisclosed decisions may be brought to the attention of an ALCA by the
contracting officer, workers or their representatives, an enforcement
agency, or any other source.
The weighing process is not mechanistic, and this Guidance cannot
account for all of the possible circumstances or facts related to a
contractor's record of Labor Law compliance. However, there are certain
factors that in many cases will help inform an ALCA's analysis and
advice. These factors, when present, will weigh for or against a
conclusion that a contractor has a satisfactory record of Labor Law
compliance. See Appendix E.
1. Mitigating Factors That Weigh in Favor of a Satisfactory Record of
Labor Law Compliance
Mitigating factors weigh in favor of a conclusion that a contractor
has a satisfactory record of Labor Law compliance. The list of factors
below includes ones that an ALCA may be able to identify with
information obtained from enforcement agencies. It also includes
factors that an ALCA will not be able to identify unless the contractor
provides the relevant information when given the opportunity to do so
by the contracting officer. To ensure that all mitigating factors are
considered by the ALCA, the contractor should avail itself of the
opportunity to provide all the information it believes demonstrates a
satisfactory record of Labor Law compliance.
Generally, the most important mitigating factor will be the extent
to which the contractor has remediated the violation(s) and taken steps
that will prevent recurrence in the future. Other mitigating factors
include where the contractor has only a single disclosed violation;
where the number of violations is low relative to the size of the
contractor; where the contractor has implemented a safety-and-health
management program, a collectively-bargained grievance procedure, or
other compliance program; where a violation resulted from a recent
legal or regulatory change; where the findings in the relevant Labor
Law decision support the contractor's defense that it acted in good
faith or had reasonable grounds for believing that it was not violating
the law; and where the contractor has maintained a long period of
compliance following any violations.
None of these mitigating factors are necessarily determinative. Nor
is this an exhaustive list. In some cases, depending on the
circumstances, several mitigating factors may need to be present in
order for an ALCA to conclude that a contractor has a satisfactory
record of Labor Law compliance. In other cases, the presence of only
one of these factors may be sufficient to support such a conclusion.
a. Remedial Measures
As noted above, the extent to which a contractor has remediated a
Labor Law violation will typically be the most important factor that
can mitigate the effect of a violation. Remedial measures can include
measures taken to correct an unlawful practice, make affected employees
whole, or otherwise comply with a contractor's obligations under the
Labor Laws. Remedial measures also may include the implementation of
new procedures and practices, or other actions, in order to promote
future compliance. Contractors may take remedial measures voluntarily,
through a settlement agreement with an enforcement agency or private
parties, or pursuant to a court order. Remedial measures may also be
taken as a result of labor compliance agreements, which are discussed
in section III(C) below.
Where a contractor institutes remedial measures, this may indicate
that a contractor has recognized the need to address a violation and
has taken steps to bring itself into compliance with the law. The
timeliness with which a contractor agrees to, initiates, or completes
the implementation of remedial measures may be relevant to the weight
that an ALCA gives to this factor. Similarly, failure to remediate a
violation may demonstrate disregard for legal obligations, which in
turn may raise concerns about a contractor's commitment or ability to
comply with the law during future contract performance.
[[Page 58734]]
b. Only One Violation
While a contracting officer is not precluded from making a
determination of nonresponsibility based on a single violation in the
circumstances where merited, the Order provides that, in most cases, a
single violation of a Labor Law may not necessarily give rise to a
determination of lack of responsibility, depending on the nature of the
violation. Order, section 4(a)(i). Thus, when considering mitigating
factors, an ALCA may generally consider the existence of only a single
violation during the 3-year disclosure period as weighing in favor of a
conclusion that the contractor has a satisfactory record of Labor Law
compliance.
c. Low Number of Violations Relative to Size
Larger contractors, by virtue of their size, are more likely to
have multiple violations than smaller ones. When assessing contractors
with multiple violations, the size of the contractor is considered.
d. Safety-and-Health Programs, Grievance Procedures, or Other
Compliance Programs
Contractors can help to assure future compliance by implementing a
safety-and-health management program such as OSHA's 1989 Safety and
Health Program Management guidelines or any updates to those
guidelines,\117\ grievance procedures (including collectively-bargained
ones), monitoring arrangements negotiated as part of either a
settlement agreement or labor compliance agreement, or other similar
compliance programs. Such programs and procedures can foster a
corporate culture in which workers are encouraged to raise legitimate
concerns about Labor Law violations without the fear of repercussions;
as a result, they may also prompt workers to report violations that
would, under other circumstances, go unreported. Therefore,
implementation or prior existence of such a program is a mitigating
factor.
---------------------------------------------------------------------------
\117\ In addition, there are two voluntary industry consensus
standards that, if implemented, should be considered as mitigating
factors for violations involving workplace safety and health: The
ANSI/AIHA Z10--2005 Occupational Safety and Health Management
Systems (ANSI/AIHA, 2005), and the OHSAS 18001--2007 Occupational
Health and Safety Management Systems (OHSAS Project Group, 2007).
---------------------------------------------------------------------------
e. Recent Legal or Regulatory Change
To the extent that the Labor Law violations can be traced to a
recent legal or regulatory change, this may be a mitigating factor.
This may be a case where a new agency or court interpretation of an
existing statute is applied retroactively and a contractor's pre-change
conduct is found to be a violation. For example, where prior agency or
court decisions suggested that a practice was lawful, but the Labor Law
decision finds otherwise, this may be a mitigating factor.
f. Good Faith and Reasonable Grounds
It may be a mitigating factor where the findings in the relevant
Labor Law decision support the contractor's defense that it had
reasonable grounds for believing that it was not violating the law. For
example, if a contractor acts in reliance on advice from a responsible
official from the relevant enforcement agency, or an authoritative
administrative or judicial ruling on a similar case, such reliance will
typically demonstrate good faith and reasonable grounds. This
mitigating factor also applies where a violation otherwise resulted
from the conduct of a government official. For example, a DBA violation
may be mitigated where the contracting agency failed to include the
relevant contract clause and wage determination in a contract.
g. Significant Period of Compliance Following Violations
If, following one or more violations within the 3-year disclosure
period, the contractor maintains a steady period of compliance with the
Labor Laws, such compliance may mitigate the existence of prior
violations (e.g., violations were reported from 2\1/2\ years ago and
there have been none since). This is a stronger mitigating factor where
the contractor has a recent Labor Law decision that it must disclose,
but the underlying conduct took place significantly before the 3-year
disclosure period and the contractor has had no subsequent violations.
2. Factors That Weigh Against a Satisfactory Record of Labor Law
Compliance
There are also factors that weigh against a conclusion that a
contractor has a satisfactory record of Labor Law compliance. The list
of factors below is not exhaustive. Nor are any of these factors
necessarily determinative. An ALCA reviews these factors as part of an
evaluation of the totality of the circumstances. In some cases, several
factors may need to be present in order for an ALCA to conclude that a
contractor has an unsatisfactory record of Labor Law compliance.
Depending on the facts of the case, even where multiple factors are
present, they may be outweighed by mitigating circumstances.
a. Pervasive Violations
As described in section III(A)(4) above, pervasive violations are
violations that demonstrate a basic disregard for the Labor Laws. Such
disregard of legal obligations creates a heightened danger that the
contractor may, in turn, disregard its contractual obligations as well.
Additionally, such contractors are more likely to violate the Labor
Laws in the future, and those violations--and any enforcement
proceedings or litigation that may ensue--may imperil their ability to
meet their obligations under a contract. Accordingly, where an ALCA has
classified violations as pervasive (in the classification step
described above in section III(A)), this weighs strongly against a
satisfactory record of Labor Law compliance.
b. Violations That Meet Two or More of the Categories Discussed Above
(Serious, Repeated, and Willful)
A violation that falls into two or more of the categories is also,
as a general matter, more likely to be probative of the contractor's
disregard for legal obligations and unsatisfactory working conditions
than a violation that falls into only one of those categories.
Accordingly, where an ALCA has classified a violation as both repeated
and willful, for example, the violation will tend to weigh more
strongly against a satisfactory record of Labor Law compliance than a
similar violation that is repeated or willful, but not both.
c. Violations of Particular Gravity
In analyzing a contractor's record, an ALCA does not need to give
equal weight to two violations that have received the same
classification. Labor Law violations of particular gravity include, but
are not limited to, violations related to the death of an employee;
violations involving a termination of employment for exercising a right
protected under the Labor Laws; violations that detrimentally impact
the working conditions of all or nearly all of the workforce at a
worksite; and violations where the amount of back wages, penalties, and
other damages awarded is greater than $100,000.
d. Violations for Which Injunctive Relief Is Granted
Both preliminary and permanent injunctions are rarely granted by
courts and require a showing of compelling circumstances, including
irreparable harm to workers and a threat to the
[[Page 58735]]
public interest. Accordingly, where a court grants injunctive relief to
remedy a violation that is already classified as serious, repeated,
willful, and/or pervasive, the ALCA should take this into account as a
factor that increases the significance of that violation to the
contractor's overall record of Labor Law compliance.
e. Violations That Are Reflected in Final Orders
To the extent that the judgment, determination, or order finding a
Labor Law violation is final (because appeals and opportunities for
further review have been exhausted or were not pursued), the violation
should be given greater weight than a similar violation that is not yet
final. While a violation that is not final should be given lesser
weight, it will still be considered as relevant to a contractor's
record of Labor Law compliance.
C. Advice Regarding a Contractor's Record of Labor Law Compliance
As discussed above, an ALCA's assessment of a contractor's Labor
Law violations involves a three-step process: (1) Classifying
violations to determine whether any are serious, repeated, willful,
and/or pervasive; (2) weighing any serious, repeated, willful, and/or
pervasive violations in light of the totality of the circumstances,
including any mitigating factors that the contractor has identified;
and then (3) providing the contracting officer with written analysis
and advice regarding the contractor's record of Labor Law compliance.
The ALCA determines what advice and analysis to give to the
contracting officer through the classification and weighing steps. In
providing advice, the ALCA carefully considers the contractor's record
of Labor Law compliance and makes a recommendation regarding whether it
could support a finding, by the contracting officer, that the
contractor has a satisfactory record of integrity and business ethics.
See FAR 22.2004-2(b)(3)-(4). As a part of this analysis, the ALCA
considers whether a labor compliance agreement is warranted to ensure
the contractor's compliance with the Labor Laws during future contract
performance--and, if so, the timing of the negotiations. Id.
Labor compliance agreements are negotiated by the contractor and
the relevant enforcement agency/agencies. These agreements may include
enhanced remedial measures intended to prevent future violations and
increase compliance with Labor Laws. Examples of enhanced remedial
measures include, but are not limited to, specific changes in the
contractor's business policies and operations, adoption of a safety-
and-health management system, assessment by outside consultants,
internal compliance audits or external compliance monitoring, and
enterprise-wide applicability of remedial measures. A contractor may
enter into a labor compliance agreement while at the same time
continuing to contest an underlying Labor Law violation.
A labor compliance agreement is warranted where the contractor has
serious, repeated, willful, and/or pervasive Labor Law violations that
are not outweighed by mitigating factors and the ALCA identifies
conduct or policies that could be addressed through preventative
actions. Where this is the case, the contractor's history of Labor Law
violations demonstrates a risk to the contracting agency of violations
during contract performance, but these risks may be mitigated through
the implementation of appropriate enhanced compliance measures. A labor
compliance agreement also may be warranted where the contractor
presently has a satisfactory record of Labor Law compliance, but there
are also clear risk factors present, and a labor compliance agreement
would reduce these risk factors and demonstrate steps to maintain Labor
Law compliance during contract performance.
When an ALCA recommends a labor compliance agreement, the ALCA has
three options regarding the timing of negotiations: (1) The contractor
must commit, after award, to negotiate an agreement; (2) the contractor
must commit, before award, to negotiate an agreement; or (3) the
contractor must enter into an agreement before award. FAR 22.2004-
2(b)(3)(ii)-(iv).
1. ALCA Recommendation
The ALCA's advice to the contracting officer must include one of
the following recommendations: The contractor's record of Labor Law
compliance--
(i) Supports a finding, by the contracting officer, of a
satisfactory record of integrity and business ethics;
(ii) Supports a finding, by the contracting officer, of a
satisfactory record of integrity and business ethics, but the
prospective contractor needs to commit, after award, to negotiating a
labor compliance agreement or another acceptable remedial action;
(iii) Could support a finding, by the contracting officer, of a
satisfactory record of integrity and business ethics, only if the
prospective contractor commits, prior to award, to negotiating a labor
compliance agreement or another acceptable remedial action;
(iv) Could support a finding, by the contracting officer, of a
satisfactory record of integrity and business ethics, only if the
prospective contractor enters, prior to award, into a labor compliance
agreement; or
(v) Does not support a finding, by the contracting officer, of a
satisfactory record of integrity and business ethics, and the agency
suspending and debarring official should be notified in accordance with
agency procedures.
FAR 22.2004-2(b)(3). Additional guidance regarding each
recommendation is provided below.
a. Satisfactory Record
A contractor has a satisfactory record of Labor Law compliance
where it has no Labor Law violations within the 3-year disclosure
period or has no violations that meet the definitions of serious,
repeated, willful, and/or pervasive. Under these circumstances an ALCA
may recommend that the contractor's record supports a finding, by the
contracting officer, of a satisfactory record of integrity and business
ethics. This recommendation may also be appropriate where the
contractor does have violations that meet the definitions of serious,
repeated, willful, and/or pervasive, but under the totality of the
circumstances the existence of the violations is outweighed by
mitigating factors or other relevant information.
b. Commitment After Award
An ALCA may recommend that a contractor needs to commit, after the
award, to a labor compliance agreement where the contractor presently
has a satisfactory record of Labor Law compliance, but there are also
clear risk factors present, and a labor compliance agreement is
warranted to reduce these risk factors and demonstrate steps to
maintain Labor Law compliance during contract performance. This may be
the case, for example, where the contractor has serious, repeated, and/
or willful violations that have not been fully remediated, and the ALCA
has concerns that the problems related to these violations could affect
future contract performance. This may also be the case where the ALCA
is concerned that the contractor has not fully addressed managerial
issues that could result in violations that would impact performance of
the contract. Another example is where one or more of the contractor's
violations are presently in litigation and may result in final orders
against the contractor in the future. This recommendation is not
appropriate
[[Page 58736]]
where the contractor's violations are already pervasive.
c. Commitment Before Award
An ALCA may recommend that a contractor needs to commit, prior to
the award, to a labor compliance agreement where the contractor's labor
violation history demonstrates an unsatisfactory record of integrity
and business ethics unless further action is taken before the award.
This recommendation may be appropriate, for example, where the
contractor has previously failed to respond or provide adequate
justification for not responding when notified of the need for a labor
compliance agreement. It may also be appropriate where the contractor
has not been previously advised of the need for a labor compliance
agreement, but the labor violation history demonstrates an immediate
need for a commitment to negotiate--for example, where the contractor
has pervasive violations, or, in certain circumstances, multiple
violations of particular gravity.
d. Enter Into Agreement Before Award
An ALCA may also recommend that a contractor must negotiate and
enter into a labor compliance agreement prior to the award. As with the
recommendation described in section (c) above, this recommendation is
appropriate where the contractor's labor violation history demonstrates
an unsatisfactory record of integrity and business ethics unless
further action is taken before the award. Depending on the conduct of
the contractor and severity of violations, the same circumstances
described in section (c) may justify an increased level of concern
about future contract performance. In these circumstances, the ALCA may
conclude that a commitment alone prior to the award is not sufficient
and that the agreement must be fully negotiated and signed before the
award can take place.
e. Notification to Agency Suspending and Debarring Official
Although in many cases, a labor compliance agreement is warranted
to address a contractor's unsatisfactory record of Labor Law
compliance, there are circumstances in which negotiation of a labor
compliance agreement may not be warranted. In these circumstances, an
ALCA should recommend that the contractor's record does not support a
finding of a satisfactory record of integrity and business ethics and
that the agency suspending and debarring official should be notified.
This may be the case, for example, where an agreement cannot be
reasonably expected to improve future compliance. This may also be the
case where the contractor has shown a basic disregard for Labor Law,
such as by previously failing to enter into a labor compliance
agreement after being given a reasonable time to do so. Another example
is where the contractor has breached an existing labor compliance
agreement. One more example is where the contractor has previously
entered into a labor compliance agreement and subsequently commits
pervasive violations or multiple violations of particular gravity.
2. ALCA Analysis
The ALCA's recommendation must be accompanied by a written
analysis. See FAR 22.2004-2(b)(4). The written analysis must include
the number of Labor Law violations; their classification as serious,
repeated, willful and/or pervasive; any mitigating factors or remedial
measures; and any additional information that the ALCA finds to be
relevant. See id.
If the ALCA concludes that a labor compliance agreement is
warranted, then the written analysis must include a supporting
rationale for the recommendation and the name of the enforcement agency
or agencies that would execute the agreement. See FAR 22.2004-
2(b)(4)(v), (4)(viii). The rationale should include the ALCA's
explanation for any recommendation regarding when the contractor must
negotiate a labor compliance agreement, i.e., before or after award.
See id. 22.2004-2(b)(4)(v). The ALCA's explanation also should include
a rationale for any recommendation that the contractor must enter into
a labor compliance agreement before award. See id.
If the ALCA recommends that the contractor's record of Labor Law
compliance does not support a finding of a satisfactory record of
integrity and business ethics, the ALCA's analysis must include: The
rationale for the finding, whether the ALCA supports notification to
the suspending and debarring official, and whether the ALCA intends to
make such notification. FAR 22.2004-2(b)(4)(vi)-(vii).
In response to the ALCA's analysis and advice, the contracting
officer takes appropriate action, as described in the FAR rule. See FAR
22.2004-2(b)(5) (listing appropriate actions and procedures). If the
ALCA's assessment indicates that a labor compliance agreement is
warranted, the contracting officer provides written notification to the
contractor prior to the award about the contractor's obligations. See
id. 22.2004-2(b)(7). When the ALCA learns that the contractor has
entered into a labor compliance agreement, the ALCA must make a
notation in FAPIIS. Id. 22.2004-1(c)(6).
IV. Postaward Disclosure Updates and Assessment of Labor Law Violations
After receiving a contract award, contractors must continue to
disclose any new Labor Law decisions or updates to previously disclosed
decisions. See Order, section 2(b); FAR 22.2004-3(a), 52.222-59. The
contactor must make the disclosures in the SAM database at www.sam.gov.
FAR 22.2004-3(a)(1). These disclosures must be made semiannually. Id.
During performance of the contract, the ALCA has the duty to
monitor Labor Law decision information. The ALCA has the duty to
monitor SAM and FAPIIS to review any new or updated contractor
disclosures. FAR 22.2004-3(b)(1). Where a contractor previously agreed
to enter into a labor compliance agreement, the ALCA also has the duty
to verify whether the contractor is making progress toward reaching an
agreement, or has entered into and is meeting the terms of the
agreement. See id. The ALCA also may consider Labor Law decision
information received from sources other than the procurement databases.
Id.
If the ALCA has received information indicating that further
consideration or action may be warranted, then the ALCA shall notify
the contracting officer in accordance with agency procedures. FAR
22.2004-3(b)(1). When this happens, the contracting officer must afford
the contractor the opportunity to provide any additional information
that the contractor may wish to provide for consideration--including
remedial measures or other mitigating factors related to newly-
disclosed decisions, or an explanation for any delay in entering into a
labor compliance agreement. Id. 22.2004-3(b)(2).
A. Semiannual Disclosure Updates
If there are new Labor Law decisions or updates to previously
disclosed Labor Law decisions, the contractor is required to disclose
this information during performance of the contract. See FAR 22.2004-
3(a); 52.222-59(b) (contract clause). Section II(A) above describes the
covered contracts for which the initial preaward disclosure is
required. See also FAR 22.2004-1(a).
Contractors must make these postaward disclosures semiannually in
the SAM database. FAR 22.2004-3(a)(1). The contractor has flexibility
in establishing the date for the semiannual
[[Page 58737]]
update. The contractor may use the six-month anniversary date of
contract award, or the contractor may choose a different date before
that six-month anniversary date. Id. 22.2004-3(a)(2). In either case,
the contractor must continue to update it semiannually. Id.
The types of Labor Law decisions that must be disclosed during the
postaward period are the same as during the preaward period:
Administrative merits determinations, civil judgments, and arbitral
awards or decisions. See FAR 52.222-59(a) (defining ``labor law
decision''). The definition of each of these Labor Law decisions is the
same as applies preaward. See id. See section II(B) above for the
detailed definitions.
Postaward updates should include (a) any new Labor Law decisions
rendered since the last disclosure and (b) updates to previously
disclosed information. As noted above in section II(B)(4) of this
Guidance, contractors must report new Labor Law decisions even if they
arise from a previously-disclosed Labor Law violation. For example, if
a contractor initially disclosed a Federal district court judgment
finding that it violated the FLSA, it must disclose as part of the
periodic updates any subsequent Federal court of appeals decision
affirming that judgment. In a postaward disclosure, contractors may
also submit updated information reflecting the fact that a previously
disclosed Labor Law decision has been vacated, reversed, or otherwise
modified.
In any postaward update, contractors must disclose the same
information about any individual Labor Law decision that must be
disclosed preaward: (a) The Labor Law that was violated; (b) the case
number, inspection number, charge number, docket number, or other
unique identification number; (c) the date the Labor Law decision was
rendered; and (d) the name of the court, arbitrator(s), agency, board,
or commission that rendered the decision. See FAR 52.222-59(b)(1). And,
as with preaward disclosures, the contractor is encouraged to submit
such additional information as the contractor deems necessary,
including mitigating circumstances and remedial measures. See id.
52.222-59(b)(3).
B. ALCA Assessment and Advice
Once the contractor has been given an opportunity to provide
additional information, the ALCA follows the same classification,
weighing, and advice processes that the ALCA follows in the preaward
period, which are described in section III above. The ALCA provides
written analysis and advice to the contracting officer regarding
appropriate actions for the contracting officer's consideration. This
postaward analysis and advice is similar to the preaward process
discussed above in section III(C). The postaward analysis and advice
should include:
(i) Whether any violations should be considered serious,
repeated, willful, or pervasive;
(ii) The number and nature of violations (depending on the
nature of the labor law violation, in most cases, a single labor law
violation may not necessarily warrant action);
(iii) Whether there are any mitigating factors;
(iv) Whether the contractor has initiated and implemented, in a
timely manner--
i. Its own remedial measures; or
ii. Other remedial measures entered into through agreement with,
or as a result of, the actions or orders of an enforcement agency,
court, or arbitrator;
(v) Whether a labor compliance agreement or other remedial
measure is --
(A) Warranted and the enforcement agency or agencies that would
execute such agreement with the contractor;
(B) Under negotiation between the contractor and the enforcement
agency;
(C) Established, and whether it is being adhered to; or
(D) Not being negotiated or has not been established, even
though the contractor was notified that one had been recommended,
and the contractor's rationale for not doing so.
(vi) Whether the absence of a labor compliance agreement or
other remedial measure, or noncompliance with a labor compliance
agreement, demonstrates a pattern of conduct or practice that
reflects disregard for the recommendation of an enforcement agency.
(vii) Whether the labor law violation(s) merit consideration by
the agency suspending and debarring official and whether the ALCA
will make such a referral; and
(viii) Any such additional information that the ALCA finds to be
relevant.
FAR 22.2004-3(b)(3). In determining whether a labor compliance
agreement is warranted or whether the Labor Law decisions merit
consideration by the agency suspending and debarring official, the ALCA
should consider the guidance provided above in section III(C).
In response to new information about Labor Law violations, the
contracting officer may take no action and continue the contract, or
may exercise a contract remedy as appropriate. See FAR 22.2004-3(b)(4)
(listing appropriate actions and procedures).
V. Subcontractor Responsibility
In addition to contracts between contractors and contracting
agencies, the Order also applies to certain subcontracts with an
estimated value that exceeds $500,000. FAR 52.222-59(c). The
subcontracts to which the Order applies are described as ``covered
subcontracts'' in this Guidance. As noted above, covered subcontracts
include subcontracts for commercial items, but do not include
subcontracts for commercially available off-the-shelf (COTS) items. See
id. 52.222-59(c)(1)(i) (excluding COTS contracts); 2.101 (defining COTS
items).
Prime contractors working on contracts covered by the Order are
required to consider prospective subcontractors' records of Labor Law
compliance when making responsibility determinations for prospective
subcontractors. FAR 52.222-59(c). This requirement applies to
subcontractors at all tiers. Id. 52.222-59(g).
A. Preaward Subcontractor Disclosures
Prospective subcontractors for a covered subcontract must (like
prime contractors on a covered procurement contract) make an initial
representation to the contractor about compliance with Labor Laws,
followed by a more detailed disclosure. See FAR 52.222-59(c)(3). See
also section II(C)(1), above, describing contractor disclosures. The
prospective subcontractor must make the detailed disclosure to the
Department, id. 52.222-59(c)(3)(ii), by following the procedure at the
``Subcontractor Disclosures'' tab at www.dol.gov/fairpayandsafeworkplaces. The Department, in turn, provides advice to
the subcontractor that the subcontractor then provides to the
contractor to use in the responsibility determination.
1. Initial Representation
In the initial representation to the contractor, prospective
subcontractors must represent whether there have been any Labor Law
decisions rendered against the subcontractor in the period beginning on
October 25, 2015 to the date of the subcontractor's offer, or for three
years preceding the date of the subcontractor's offer, whichever period
is shorter. FAR 52.222-59(c)(3)(i).
2. Detailed Disclosure to the Department
Prospective subcontractors must make a more detailed disclosure to
the Department. FAR 52.222-59(c)(3)(ii). Subcontractors must disclose
the same detailed information that prime contractors themselves must
disclose on a covered procurement contract. See id.; see also Guidance,
section II(C)(1) (describing contractor disclosures). Subcontractors
must disclose all covered Labor Law decisions, and subcontractors also
may provide additional information to the Department that the
subcontractor
[[Page 58738]]
believes will demonstrate its responsibility. Id. 52.222-59(c)(3)(iii).
This may include information on mitigating circumstances and remedial
measures, such as information about steps taken to correct the
violations at issue, the negotiation or execution of a settlement
agreement or labor compliance agreement, or other steps taken to
achieve compliance with the Labor Laws.
3. Providing the Department's Advice to the Contractor
When a prospective subcontractor submits Labor Law violation and
other information to the Department, the Department provides the
subcontractor with advice regarding its record of Labor Law compliance.
FAR 52.222-59(c)(4)(ii)(C). The subcontractor then must provide the
Department's advice to the contractor for the contractor's use in
determining whether the subcontractor is a responsible source. Id.
B. Preaward Department of Labor Advice to the Subcontractor
After receiving a subcontractor's detailed disclosures, the
Department provides advice to the subcontractor about its record of
Labor Law compliance. The advice may include (1) that the subcontractor
has no serious, repeated, willful, or pervasive violations; (2) that
the subcontractor has serious, repeated, willful, or pervasive
violations but that a labor compliance agreement is not warranted
because, for example, the contractor has initiated and implemented its
own remedial measures; (3) that the subcontractor has serious,
repeated, willful, or pervasive violations and a labor compliance
agreement is warranted; (4) that a labor compliance agreement is
warranted and the subcontractor has not entered into such an agreement
in a reasonable period of time; (5) that the subcontractor is not
complying with a labor compliance agreement into which it previously
entered; or (6) that the subcontractor is complying with a labor
compliance agreement into which it previously entered. See FAR 52.222-
59(c)(4)(ii)(C).
In assessing subcontractor Labor Law compliance, the Department
applies the same guidance on classification and weighing of Labor Law
violations included above in sections III(A) and III(B) of this
Guidance. In carrying out the assessment, Department officials and
ALCAs may receive information from an enforcement agency about the
subcontractor's compliance record. This information will be evaluated
objectively and without regard for the enforcement agency's litigation
interests.
C. Preaward Determination of Subcontractor Responsibility
The prime contractor (not the Department) has the duty to make a
determination that its subcontractors are responsible sources. See FAR
9.104-4(a). When assessing a prospective subcontractor's
responsibility, the contractor may find that the prospective
subcontractor has a satisfactory record of integrity and business
ethics with regard to compliance with Labor Laws under certain
specified conditions. These conditions are:
1. The Subcontractor Has No Covered Labor Law Decisions To Disclose
The contractor may find the subcontractor to have a satisfactory
record where the subcontractor has represented that it has no covered
Labor Law decisions to disclose. See FAR 52.222-59(c)(4)(i).
2. The Department Advises That the Subcontractor Has No Serious,
Repeated, Willful, or Pervasive Violations
The contractor may find the subcontractor to have a satisfactory
record where the subcontractor has received advice from the Department
that none of the subcontractor's violations are serious, repeated,
willful, or pervasive; and the subcontractor has provided notice of
this advice to the contractor. See FAR 52.222-59(c)(4)(ii)(C)(1).
3. The Department Advises That the Subcontractor Has Taken Sufficient
Action To Remediate Violations
The contractor may find the subcontractor to have a satisfactory
record where the subcontractor has received advice from the Department
that it has violations that are serious, repeated, willful, or
pervasive; but the Department also advises that the subcontractor has
taken sufficient action to remediate its violations, such as through
its own remedial measures, by entering into a labor compliance
agreement, or by agreeing to enter into such an agreement; and the
subcontractor has provided notice of this advice to the contractor. See
FAR 52.222-59(c)(4)(ii)(C)(2).
4. The Department Has Failed To Provide Timely Advice
If the Department does not provide advice to the subcontractor
within 3 business days of the subcontractor's detailed disclosure of
Labor Law decision information, and the Department did not previously
advise the subcontractor that it needed to enter into a labor
compliance agreement, then the contractor may proceed with making a
responsibility determination using available information and business
judgment. See FAR 52.222-59(c)(6).
5. The Subcontractor Contests Negative Advice From the Department
Where the subcontractor contests negative advice from the
Department, the contractor may still find the subcontractor has a
satisfactory record under certain conditions. If the subcontractor
disagrees with negative advice from the Department, then the
subcontractor must provide the contractor with (i) information about
all the Labor Law violations that have been determined by the
Department to be serious, repeated, willful, and/or pervasive; (ii)
such additional information that the subcontractor deems necessary to
demonstrate its responsibility, including mitigating factors, remedial
measures such as subcontractor actions taken to address the Labor Law
violations, labor compliance agreements, and other steps taken to
achieve compliance with labor laws; (iii) a description of the
Department's advice or proposed labor compliance agreement; and (iv) an
explanation of the basis for the subcontractor's disagreement with the
Department. See FAR 52.222-59(c)(4)(ii)(C)(3). If the contractor
determines that the subcontractor is responsible on the basis of this
representation, or if the contractor determines that due to a
compelling reason the contractor must proceed with the subcontract
award, then the contractor must notify the contracting officer of the
decision and provide the name of the subcontractor and the basis for
the decision (e.g., urgent and compelling circumstances). See id.
52.222-59(c)(5).
D. Semiannual Subcontractor Updates
Subcontractors must update their Labor Law decision disclosures
after a subcontract award in the same manner that prime contractors
must do for a prime contract award. See FAR 22.2004-1(b); 22.2004-4.
Subcontractors must determine, semiannually, whether the Labor Law
disclosures that the subcontractor previously provided to the
Department are current and complete. Id. 52.222-59(d)(1). If the
information is current and complete, no action is required. Id. If the
information is not current and complete, subcontractors must provide
revised information to the Department and then
[[Page 58739]]
make a new representation to the contractor. Id. 52.222-59(d)(1).
If a subcontractor discloses new information about Labor Law
decisions to the Department, the subcontractor must provide to the
contractor any new advice from the Department. See FAR 52.222-59(d)(1).
In addition, the subcontractor must disclose to the contractor if,
during the course of performance of the contract, the Department
notifies the subcontractor that it has not entered into a labor
compliance agreement in a reasonable period or is not meeting the terms
of a labor compliance agreement. Id. 52.222-59(d)(2).
When a subcontractor discloses new Department advice or new
information about Labor Law decisions, the contractor must determine
whether action is necessary. See FAR 52.222-59(d)(3). If the contractor
decides to continue the subcontract notwithstanding negative Department
advice, the contractor must notify the contracting officer of the
decision and provide the name of the subcontractor and the basis for
the decision (e.g., urgent and compelling circumstances). Id. 52.222-
59(d)(4).
VI. Preassessment
Prior to bidding on a contract, prospective contractors and
subcontractors are encouraged to voluntarily contact the Department to
request an assessment of their record of Labor Law compliance. The
Department will assess whether any of the prospective contractor's
violations are serious, repeated, willful, and/or pervasive; and
whether a labor compliance agreement may be warranted. If a contractor
that has been assessed by the Department subsequently submits a bid,
and the contracting officer initiates a responsibility determination
for the contractor, the contracting officer and the ALCA may rely on
the Department's assessment that the contractor has a satisfactory
record of Labor Law compliance unless additional Labor Law decisions
have been disclosed.
Contact information and additional guidance regarding the
preassessment program can be found at http://www.dol.gov/fairpayandsafeworkplaces.
VII. Paycheck Transparency
Transparency in the relationships between employers and their
workers is critical to workers' understanding of their legal rights and
to the resolution of workplace disputes. When workers lack information
about how their pay is calculated and their status as employees or
independent contractors, workers are less aware of their rights and
employers are less likely to comply with labor laws. Providing workers
with information about how their pay is calculated each pay period will
enable workers to raise any concerns about pay more quickly, and will
encourage proactive efforts by employers to resolve such concerns.
Similarly, providing workers who are classified as independent
contractors with notice of their status will enable them to better
understand their legal rights, evaluate their status as independent
contractors, and raise any concerns during the course of the working
relationship as opposed to after it ends (which will increase the
likelihood that the employer and the worker will be able to resolve any
concerns more quickly and effectively).
The Order seeks to improve paycheck transparency for covered
workers on Federal contracts by instructing contracting officers to
insert the contract clause at FAR 52.222-60. See Order, section 5; FAR
22.2007(d). This clause requires contractors to provide wage statements
and notice of any independent contractor relationship to their covered
workers, and this clause's requirements flow down and apply to covered
workers of subcontractors regardless of tier. See Order, section 5; FAR
52.222-60.
A. Wage Statement
The Order requires contracting agencies to ensure that, for covered
procurement contracts, provisions in solicitations and clauses in
contracts require contractors to provide most workers under the
contract with a ``document'' each pay period with ``information
concerning that individual's hours worked, overtime hours, pay, and any
additions made to or deductions made from pay.'' Order, section 5(a).
Contracting agencies also must ensure that contractors ``incorporate
this same requirement'' into covered subcontracts at all tiers. Id.
The Order requires that the wage statement be provided to ``all
individuals performing work'' for whom the contractor or subcontractor
is required to maintain wage records under the FLSA, the DBA, or the
SCA. Order, section 5(a).\118\ This means that a wage statement must be
provided to every worker subject to any of those laws regardless of the
classification of the worker as an employee or independent contractor.
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\118\ The Order also requires the provision of a wage-statement
document to all workers for whom records must be retained under any
State laws ``equivalent'' to the FLSA, DBA, or SCA. See Order,
section 5(a). As noted above in section II(B), this Guidance does
not include a list of State laws equivalent to the FLSA, the DBA,
and the SCA. The list of equivalent State laws will be included in
future guidance issued by the Department.
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The Order states that the wage statement provided to workers each
pay period must be a ``document.'' Order, section 5(a). If the
contractor or subcontractor regularly provides documents to its workers
by electronic means, the wage statement may be provided electronically
if the worker can access it through a computer, device, system, or
network provided or made available by the contractor. FAR 52.222-60.
The Order further provides that the wage statement must be issued
every pay period and contain the total number of hours worked in the
pay period and the number of those hours that were overtime hours.
Order, section 5(a). The FAR requires that if the wage statement is not
provided weekly and is instead provided bi-weekly or semi-monthly
(because the pay period is bi-weekly or semi-monthly), then the hours
worked and overtime hours contained in the wage statement must be
broken down to correspond to the period (which will almost always be
weekly) for which overtime is calculated and paid. See FAR 52.222-60.
If the hours worked and overtime hours are aggregated in the wage
statement for the entire pay period as opposed to being broken down by
week, the worker may not be able to understand and evaluate how the
overtime hours were calculated. For example, if the pay period is bi-
weekly and the worker is entitled to overtime pay for hours worked over
40 in a week, then the wage statement must provide the hours worked and
any overtime hours for the first week and the hours worked and any
overtime hours for the second week.
The FAR requires that the wage statement contain the worker's rate
of pay, which provides workers with vital information about how their
gross pay is calculated. See FAR 52.222-60. The rate of pay will most
often be the worker's regular hourly rate of pay. If the worker is not
paid by the hour, the rate of pay information should reflect the basis
of pay by indicating the monetary amount paid on a per day, per week,
per piece, or other basis. The FAR also requires that the wage
statement contain the gross pay and itemize or identify each addition
to or deduction from gross pay. Id. Additions to pay may include
bonuses, awards, and shift differentials. Deductions from pay include
deductions required by law (such as withholding for taxes), voluntary
deductions by the worker (such as contributions to health insurance
[[Page 58740]]
premiums or retirement accounts), and all other deductions or
reductions made from gross pay regardless of the reason. Itemizing the
additions to and deductions from gross pay means that each addition and
deduction must be separately listed and the specific amount added or
deducted must be identified (lump sums are insufficient). Providing a
worker with the gross pay and itemized additions to and deductions from
gross pay allows the worker to understand the net pay received and how
it was calculated.
In sum, the FAR requires that wage statements contain the following
information: (1) Hours worked, (2) overtime hours, (3) rate of pay, (4)
gross pay, and (5) an itemization of each addition to and deduction
from gross pay. FAR 52.222-60.\119\
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\119\ Nothing prohibits the inclusion of more information in the
wage statement (e.g., exempt status notification, overtime pay
rate). Neither the Order nor the FAR preempts State laws or local
ordinances that require more information to be included in the wage
statement.
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As specified in the FAR, if a significant portion of the
contractor's or subcontractor's workforce is not fluent in English, the
wage statement must also be in the language(s) other than English in
which the significant portion(s) of the workforce is fluent. FAR
52.222-60.
The wage statement provided to workers who are exempt from overtime
pay under the FLSA ``need not include a record of hours worked if the
contractor informs the individuals of their exempt status.'' Order,
section 5(a).\120\ To sufficiently inform a worker of exempt status so
that the wage statement need not include hours worked, the contractor
or subcontractor must provide written notice to the worker stating that
the worker is exempt from the FLSA's overtime compensation
requirements; oral notice is not sufficient. See FAR 52.222-60. The
notice can be a stand-alone document or can be included in the offer
letter, employment contract, or position description, or wage
statement--as long as the document is provided to the worker. See
id.\121\ The notice must be provided either before the worker starts
work on the contract or in the worker's first wage statement under the
contract. See id. If during contract performance, the contractor or
subcontractor determines that the worker's status has changed from non-
exempt to exempt, it must provide notice to the worker prior to
providing a wage statement without hours worked information or in the
first wage statement after the change. See id. If the contractor or
subcontractor regularly provides documents to its workers by electronic
means, the document may be provided electronically if the worker can
access it through a computer, device, system, or network provided or
made available by the contractor or subcontractor. Id.
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\120\ Generally, non-exempt workers are entitled to overtime
under the FLSA when they work over 40 hours in a week. See 29 U.S.C.
207(a). However, certain workers (such as nurses, firefighters, and
police officers) may instead be entitled to overtime under terms
other than the 40-hour workweek. See, e.g., 29 U.S.C. 207(j), (k).
Such workers are not exempt from the FLSA's overtime requirements;
wage statements provided to them must contain a record of hours
worked.
\121\ As specified in the FAR, if a significant portion of the
contractor's workforce is not fluent in English, the document
notifying the worker of exempt status must also be in the
language(s) other than English in which the significant portion(s)
of the workforce is fluent. See FAR 52.222-60(e)(1).
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The Department and courts determine whether a worker is exempt from
the FLSA's overtime requirement. The fact that a contractor or
subcontractor has provided a worker with notice that he or she is
exempt does not mean that the worker is correctly classified. The
Department will not consider the notice when determining whether a
worker is exempt. A contractor or subcontractor may not in its exempt-
status notice to a worker indicate or suggest that the Department or
the courts agree with the determination that the worker is exempt. FAR
52.222-60.
The wage-statement requirements ``shall be deemed to be fulfilled''
where a contractor ``is complying with State or local requirements that
the Secretary of Labor has determined are substantially similar to
those required'' by the Order. Order, section 5(a). The Secretary has
determined that the following States and localities have
``substantially similar'' wage-statement requirements as the Order:
Alaska, California, Connecticut, the District of Columbia, Hawaii, New
York, and Oregon. The wage-statement requirements of these States and
the District of Columbia are substantially similar because they require
employers to provide wage statements that include at least the worker's
overtime hours or overtime earnings, total hours, gross pay, and any
additions or deductions from gross pay. Providing a worker in one of
the Substantially Similar Wage Payment States with a wage statement
that complies with the requirements of that State or locality satisfies
the Order's wage-statement requirement. See FAR 52.222-60. In addition,
a contractor satisfies the Order's wage-statement requirement by
adopting the wage-statement requirements of any particular
Substantially Similar Wage Payment State in which the contractor has
workers and providing a wage statement that complies with the
requirements of that State or locality to all of its workers.
The Department maintains on its Web site (http://www.dol.gov/fairpayandsafeworkplaces) a list of the Substantially Similar Wage
Payment States. The Secretary recognizes that States and localities may
change their wage-statement laws so that their requirements may or may
not be substantially similar to the Order's wage-statement requirement.
When the Secretary determines that a State or locality must be added to
or removed from the list of Substantially Similar Wage Payment States,
notice of such changes will be published on the Web site. The
Department may also issue All Agency Memoranda or similar direction to
contracting agencies and the public to communicate updates to the list
of the Substantially Similar Wage Payment States.
B. Independent Contractor Notice
The Order requires contractors who treat individuals performing
work for them (on covered procurement contracts) as independent
contractors to provide each such worker with a document informing him
or her of this independent contractor status. See Order, section 5(b).
Contracting agencies must require that contractors incorporate this
same requirement into covered subcontracts. See FAR 52.222-60.
The FAR requires contractors and subcontractors to provide the
notice informing the worker of status as an independent contractor to
each individual worker treated as an independent contractor. See FAR
52.222-60. The notice must be a ``document''; oral notice of
independent contractor status is not sufficient.\122\ Id. The document
must be separate from any independent contractor agreement entered into
with the individual. Id. If the contractor regularly provides documents
to its workers by electronic means, the document may be provided
electronically if the worker can access it through a computer, device,
system, or network provided or made available by the contractor. See
id. 52.222-60.
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\122\ As specified in the FAR, if a significant portion of the
contractor's or subcontractor's workforce is not fluent in English,
the document notifying the worker of independent contractor status
must also be in the language(s) other than English with which the
significant portion(s) of the workforce is fluent. See FAR 52.222-
60(e)(1).
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The notice must be provided at the time that an independent
contractor relationship is established with the worker or before he or
she performs any work under the contract. See FAR 52.222-60. The notice
must be provided each time a worker begins work on a different covered
contract, regardless of
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whether the worker already performs the same type of work on another
covered contract. See id. If the contractor or subcontractor determines
during performance of a covered contract that a worker's status has
changed from employee to independent contractor, it must provide the
worker with notice of independent contractor status before the worker
performs any work under the contract as an independent contractor. See
id.
Enforcement agencies and courts determine whether a worker is an
independent contractor under applicable laws. A contractor may not in
its notice to a worker indicate or suggest that any enforcement agency
or court agrees with the contractor's determination that the worker is
an independent contractor. See FAR 52.222-60. The fact that a
contractor has provided a worker with notice that he or she is an
independent contractor does not mean that the worker is correctly
classified as an independent contractor. For example, the Department
would not consider the notice when determining whether a worker is an
independent contractor or employee during an investigation regarding
the contractor's compliance with the FLSA. The determination of whether
a worker is an independent contractor under a particular law remains
governed by that law's definition of ``employee'' and that law's
standards for determining which workers are independent contractors and
not employees.
VIII. Effective Date and Phase-In of Requirements
The FAR rule is effective October 25, 2016. However, several of the
requirements are not immediately applicable and are being phased in
over the course of the following year. This phase in of the
requirements is intended to allow the Government, contractors,
subcontractors, and, particularly, small business contractors and
subcontractors to prepare for and adapt to the requirements.
A. General Effect of Solicitation Provisions and Contract Clauses
The Order's prime-contractor disclosure, subcontractor disclosure,
and paycheck-transparency requirements are implemented through
solicitation provisions and contract clauses in covered contracts. See
FAR 22.2007. This means that contractors and subcontractors performing
on contracts awarded prior to the effective date of the rule (or of
specific requirements) will not be required to make the disclosures or
to provide workers with wage statements and independent contractor
notices--even after the effective date of the rule. In other words, the
Order's requirements are not retroactive. Rather, these requirements
only become effective when the solicitation provisions are included in
a new solicitation and the contract clauses are included in a new
contract.
B. Contractor Disclosure
From October 25, 2016 to April 24, 2017, the Order's prime-
contractor disclosure requirements will apply only to solicitations
from contracting agencies with an estimated value of $50 million or
more, and resultant contracts. FAR 22.2007(a) and (c)(1). After April
24, 2017, the requirements will apply to solicitations greater than
$500,000--which is the amount specified in the Order--and resultant
contracts. Id. 22.2007(a) and (c)(2); Order, section 2(a). This also
applies to the commercial items equivalent for prime contractors, at
FAR 52.212-3(s).
C. Subcontractor Disclosure
The subcontractor disclosure provisions described in section V of
this Guidance are not effective for the first year of operation of the
FAR rule implementing the Order. Thus, while the rule overall is
effective on October 25, 2016, the subcontractor disclosure provisions
are not effective until October 25, 2017. See FAR 22.2007(b)-(c),
52.222-59(c)(1). During this first year before the effective date,
prospective subcontractors are encouraged to voluntarily contact the
Department to request an assessment of their record of Labor Law
compliance. See above section VI (Preassessment).
D. Phase-In of 3-Year Disclosure Period
The general rule under the Order is that contractors and
subcontractors must disclose Labor Law decisions that were rendered
against them within the 3-year period prior to the date of the
disclosure. See Sections II(B) and V(A)(1). This 3-year disclosure
period is being phased in during the first years of the implementation
of the Order, so that no contractor or subcontractor need disclose any
Labor Law decisions that were rendered against them prior to October
25, 2015. As the FAR states, contractors and subcontractors must make
disclosures for Labor Law decisions rendered against them during the
period beginning on October 25, 2015 to the date of the offer, or for 3
years preceding the date of the offer, whichever period is shorter. See
FAR 52.222-57(c)(1)-(2); 52.222-58(b). Thus, full implementation of the
3-year disclosure period will be reached as of October 25, 2018.
E. Equivalent State Laws
The Order requires disclosure of violations of the 14 Federal
statutes and Executive orders, and also of violations of equivalent
State laws defined in guidance issued by the Department. Order, section
2(a)(i)(O). As noted above, in section II(B) of this Guidance, the
Department has determined that OSHA-approved State Plans are the only
equivalent State laws for the purpose of the Order at this time.
In future guidance, published in the Federal Register, the
Department will identify additional equivalent State laws. Until this
subsequent guidance and a subsequent FAR amendment are published,
contractors and subcontractors are not required by Order to disclose
violations of State laws other than the OSHA-approved State Plans.
F. Paycheck Transparency Provisions
The paycheck transparency provisions described in section VII of
this Guidance are not effective until January 1, 2017. See FAR
22.2007(d).
Signed this 10th day of August, 2016.
Christopher P. Lu,
Deputy Secretary, U.S. Department of Labor.
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[FR Doc. 2016-19678 Filed 8-24-16; 8:45 am]
BILLING CODE 4510-HL-P