12/21/2009
Final Rule Issued Implementing Executive Order 13496 Requiring Contractors to Notify Employees of Their Rights Under the NLRA
On December 10, 2009, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published a final rule implementing President Obama's Executive Order 13496 entitled "Notification of Employee Rights under Federal Labor Laws" ("Order"). This Executive Order was signed on January 30, 2009, along with two other pro-labor Executive Orders entitled "Nondisplacement of Qualified Workers under Service Contracts" and "Economy in Government Contracting."
President Obama's Order signifies a significant shift in labor policy because it rescinded a previous Executive Order signed by former President Bush. That Executive Order had required contractors to post a "Beck" notification informing workers that they did not have to join a union or pay union dues to keep their job. Under the new Order, federal contractors and subcontractors are required to post a notice informing workers of their rights to organize and bargain collectively under the National Labor Relations Act ("NLRA").
On August 3, 2009, the Department of Labor ("DOL") issued proposed regulations to implement the Order and provide guidance to government contractors. Once the proposed regulations are finalized, DOL will publish a poster that contractors must post in a conspicuous place at their facilities. DOL anticipates that final regulations and the required posted will be published in the June 2010 edition of the Federal Register.
The proposed version of the notice states that it is the policy of the United States to encourage collective bargaining, and it lists activities that are illegal under NLRA. In addition, it advises employees of their right to file a complaint and seek remedies for violations of their rights to association, self-organization and designation of representative for the purpose of negotiating terms and conditions of employment. Certain contracts are exempt from the notice posting requirement, including collective bargaining agreements, federal contracts below the simplified acquisition threshold of $100,000, and contracts issued by agencies or departments that the Secretary of Labor chooses to exempt.
Enforcement responsibilities for proposed the Order are shared by two agencies. The Office of Federal Contract Compliance Programs ("OFCCP") is responsible for investigation and conciliation, and that agency will refer violations to the Office of Labor-Management Standards ("OLMS") for enforcement. Contractors who fail to adhere to the posting requirements face penalties and sanctions, including debarment.