Concrete Products

JUL 2015

Concrete Products covers the issues that attract producers of ready mixed and manufactured concrete focusing on equipment and material technology, market development and management topics.

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14 • July 2015 www.concreteproducts.com GOVERNMENT AFFAIRS BY LINDA JACKSON The federal agencies charged with implementing President Obama's July 2014 Fair Pay and Safe Workplaces Executive Order have released their much-anticipated proposed rule on this directive. The Department of Labor (DOL) issued a 106-page proposed guidance document, and the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Admin- istration (NASA), issued a 131-page proposed rule, governing the terms of the so-called "Blacklisting" Executive Order (EO). If finalized in their current form, the rule and guidance would immediately upend the current sys- tem of federal contracting by enabling federal agen- cies to reject a bid or cancel an existing contract—as well as initiate suspension and debarment proceed- ings—based on labor and employment law violations that a contractor may have already resolved or that have already been adjudicated. Among other mandates, the EO requires feder- al contractors to disclose whether there has been any administrative merits determination, civil judgment, or arbitral award or decision rendered against them during the preceding three-year period for violations of any of 14 identified federal labor laws and executive orders or equivalent state laws ("equivalent state laws," according to the pro- posed rule, will be defined later). Contracting officers and newly created Labor Compliance Advisors (LCAs) will be charged with assessing whether the contractor at issue has a "satisfactory record of integrity and business eth- ics." As part of this assessment, the contracting officers and LCAs will evaluate the severity of the reported violations and any information the con- tractor chooses to submit with respect to any "vio- lation" to the extent the adjudicatory process has not been completed. In addition, contractors and subcontractors must provide their workers with information each pay period regarding how their pay is calculated and whether the workers are con- sidered independent contractors. The DOL proposal provides some detail as to what constitutes a "labor violation" by further defining what constitutes "an administrative mer- its determination, arbitral award or decision, or civil judgment." Significantly, an administrative merits determination includes, for instance, an EEOC reasonable cause determination as well as complaints filed in court by enforcement agencies. Civil judgments include any order or finding of a court even if not final (though it excludes private settlement agreements if a judgment has not been awarded). The rule recognizes that "violations" are reportable before the adjudicatory process may be completed, and provides that contractors may offer information to assist in assessing the "vio- lation." Specifically, the DOL, in its proposed guidance, delineates reportable violations by defining the terms "administrative merits determination," "civ- il judgment," "arbitral award or decision," and also defines the terms "serious," "repeated," "willful," and "pervasive" violations to assess the impact, if any, the reported violations will have on the award and/or performance of the contract at issue. As to reportable violations, the DOL guidance articulates seven categories of documents, notices, and findings—whether final or subject to appeal or further review—issued by an enforcement agency following an investigation that would constitute an administrative merits determinations that must be reported under the EO. These items are as follows: (a) From the Department's Wage and Hour Divi- sion: a WH-56 "Summary of Unpaid Wages" form; a letter indicating that an investigation disclosed a violation of sections six or seven 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 spe- cial minimum wages to workers with disabilities under section 14(c) of the FLSA or revokes a cer- tificate that authorized the payment of special minimum wages; a WH-561 "Citation and Notifi- cation of Penalty" for violations under the OSH Act's field sanitation or temporary labor camp standards; or, an order of reference filed with an administrative law judge; (b) From the Department's Occupational Safety and Health Administration (OSHA) or any state agency designated to administer an OSHA-ap- proved State Plan: a citation, an imminent dan- ger notice, a notice of failure to abate, or any state equivalent; (c) From the Department's Office of Federal Contract Compliance Programs (OFCCP): 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 (the EEOC): a letter of determi- nation that reasonable cause exists to believe that an unlawful employment practice has occurred or is occurring, or a civil action filed on behalf of the EEOC; (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 judge, or an adminis- trative law judge alleging that the contractor or subcontractor violated any provision of the Labor Laws; or, Agencies issue proposed rule, guidance on contractor 'Blacklisting' EO Linda Jackson is co-chair of Littler Mendelson PC's Government Con- tractors Industry Group and is a shareholder in the frm's Washing- ton, D.C. and Tysons Corner, Va., of- fces. She has extensive experience representing clients before federal, state and appellate courts, admin- istrative agencies and in arbitration proceedings, and can be reached at ljackson@littler.com.

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