Notice to Employees

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Notice to Employees Powered By Docstoc
					 How To Comply With
Executive Order 13496
            Nora Carroll
            Tammy Daub
        Office of the Solicitor
Civil Rights and Labor Management
               Division
                  New Employee Notification
                   Requirements for Federal
                           Contractors and
                           Subcontractors:
             How to Comply with Executive Order 13496
               and the Labor Department’s Regulations
               Requiring Notice to Employees of Rights
                under the National Labor Relations Act



11/22/2010                                               2
Federal Contractors and
Subcontractors must Post Notice
to Employees of Labor Law Rights
Beginning on June 21, 2010, federal law requires
contractors entering into contracts with the
Federal government to:
• post notices informing employees about their rights
  under Federal labor law and
• include provisions in their contracts that require
  their subcontractors to post the same employee
  notice

                                                        3
What federal law requires the new
notice to employees?
  Executive Order 13496 and the Department of
  Labor’s regulations implementing this Executive
  Order, 29 C.F.R. Part 471, which were published
  on May 20, 2010, require federal contractors and
  subcontractors to inform employees about their
  labor law rights.




                                                     4
What employee rights are
contained in the new notice?
  • The notice contains rights under the National Labor
    Relations Act (NLRA), 29 U.S.C. 151 et seq.
  • The NLRA is the primary law governing relations
    between unions and employers in the private sector.
  • The law guarantees the right of employees to
    organize and to bargain collectively with their
    employers, and to engage in other protected
    concerted activity with or without a union, or to
    refrain from all such activity.


                                                          5
What does the employee notice say?
Generally, the employee notice
• lists employees’ rights under the NLRA to form,
  join and assist a union and to bargain collectively
  with their employer;
• provides examples of unlawful employer and union
  conduct that interferes with those rights; and
• indicates how employees can contact the National
  Labor Relations Board, the federal agency that
  enforces those rights, with questions about the
  rights or to file complaints.

                                                        6
                                  11”




           17”




http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf
                                                                              7
Where can we find the text of the
required employee notice and the
contract provisions that must be
inserted into contracts?
The text of the employee notice and the provisions
that must be inserted into federal contracts and
subcontracts agreeing to inform employees about
NLRA rights can be found at 29 CFR Part 471
Appendix A.



                                                     8
Useful links
1.    Federal Register
     • http://www.gpoaccess.gov/fr
2. e-Code of Federal Regulations
        http://ecfr.gpoaccess.gov/cgi/t/text/text-
         idx?sid=f6fed2f8c2bf1d75f21e983133f1dd4d&c=ecfr&tpl=/ecfrbrowse/Title29/29cfrv2_02.tpl#40

3. OLMS
   • http://www.dol.gov/olms
4. OFCCP
   • http://www.dol.gov/ofccp

                                                                                                     9
Who is covered by this rule?
Any contractor or subcontractor that is an employer
under the NLRA must comply with this rule.
Employers not covered by the NLRA are:
• the United States or any wholly owned Government
  corporation;
• any Federal Reserve Bank;
• any State or political subdivision thereof;
• any person subject to the Railway Labor Act;
• any labor organization (other than when acting as an
  employer); or
• anyone acting in the capacity of officer or agent of such
  labor organization.
                                                         10
Some employees are excluded
from coverage under the NLRA
  Employers exclusively employing workers who are
  excluded from the definition of “employee” under the
  NLRA are not covered by the requirements of this rule.
  Excluded employees include those employed:
   •   as agricultural laborers;
   •   in the domestic service of any family or person at his or her home;
   •   by his or her parent or spouse;
   •   as an independent contractor;
   •   as a supervisor as defined under the NLRA;
   •   by an employer subject to the Railway Labor Act; or
   •   by any other person not an employer as defined in the NLRA

                                                                         11
What are the basic posting requirements
that contractors and subcontractors must
satisfy?
 Contractors and subcontractors must post the
  employee notice conspicuously in and around
  their plants and offices so that it is prominent
  and readily seen by employees.
 In particular, contractors and subcontractors
  must post the notice where other notices to
  employees about their jobs are posted.

29 C.F.R. 471.2(d)

                                                     12
Other requirements regarding physical
posting of the employee notice
  Specifically, the employee notice must be posted
    where:
   employees covered by the NLRA
   engage in contract-related activity, which
    includes indirect or auxiliary work without
    which the contract could not be effectuated,
    such as maintenance, repair, personnel and
    payroll work.

  29 C.F.R. 471.2(d)
                                                     13
    Should contractors and subcontractors
    also post the notice electronically?
• Contractors and subcontractors who post notices to
    employees electronically must also post the required notice
    electronically.
•   Electronic posting requires contractors and subcontractors
    to post a link to OLMS’s website containing the employee
    notice where they customarily place other electronic
    notices to employees about their jobs.
•   The link must be no less prominent than other employee
    notices.
•   Electronic posting cannot be used as a substitute for
    physical posting.

     29 C.F.R. 471.2(f)
                                                              14
How can contractors and subcontractors
obtain the poster?
  Contractors and subcontractors can obtain the required
  poster 3 ways:

   • OLMS will print posters and provide them to federal
      contracting departments and agencies for supply to
      contractors and subcontractors;
    • contractors and subcontractors can request posters
      from OLMS or OFCCP;
    • contractors and subcontractors can download the
      poster from http://www.olms.dol.gov.
  Contractors may reproduce and use exact duplicate
  copies of the Department’s official poster.

  29 C.F.R. 471.2(e)
                                                           15
Any specific instructions for downloading the
poster?
  The OLMS web page can be found at:
   http://www.dol.gov/olms/regs/compliance/EO13496.htm


  You can download the 11X17 poster from
   http://www.dol.gov/olms/regs/compliance/EmployeeRights
    Poster11x17_Final.pdf

  You can download the two page format and put them together
    to form the 11X 17 poster from
   http://www.dol.gov/olms/regs/compliance/EmployeeRights
    Poster2page_Final.pdf

                                                               16
Are contractors and subcontractors required
to post translations of the employee notice?
• Where a significant portion of contractor's
    workforce is not proficient in English, contractors
    and subcontractors must provide the employee
    notice in languages spoken by employees.
•   OLMS will provide translations of the employee
    notice that can be used to comply with the
    physical and electronic posting requirements.

29 C.F.R. 471.2(d ), (e) and (f)
                                                          17
Posting requirements do not apply to the
following:
   • prime contracts under the Simplified
     Acquisition Threshold, which is currently set
     at $100,000.
   • subcontracts below $10,000.
   • contracts and subcontracts for work
     performed exclusively outside the territorial
     United States.
   Other exceptions and exemptions may apply.
  29 C.F.R. 471.3
                                                     18
Important note about exceptions
to posting requirements:
No department, agency, contractor or subcontractor
is permitted to procure or provide supplies or
services in order to avoid the posting requirements.


  29 C.F.R. 471.3 (a)




                                                       19
Can employees file complaints?
• Employees may file complaints with OLMS or
    DOL’s Office of Federal Contract Compliance
    (OFCCP) about contractors and subcontractors that
    do not comply with the Labor Department’s posting
    requirements. 29 C.F.R. 471.11
•   Employees may also file complaints if the required
    contract provisions are not included in contracts
    and subcontracts. 29 CFR 471.11



                                                     20
What must be in complaints?
• Complaints must be in writing and must include
    the complaining employee’s contact information
    and signature. 29 C.F.R. 471.11
•   Complaints must contain sufficient information
    about the location of the alleged violation and any
    other information that will assist in resolving the
    complaint. 29 C.F.R. 471.11




                                                          21
Compliance evaluations
• In addition to employee complaints, OFCCP
    may conduct evaluations to determine
    compliance. 29 C.F.R. 471.10
•   Compliance evaluations may be conducted to
    determine compliance with this regulation, or
    may be done in conjunction with evaluations of
    contractor compliance with other laws and
    regulations enforced by the Department. 29
    C.F.R. 471.10



                                                     22
What will a compliance evaluation involve?
  During an evaluation, OFCCP will determine
  whether:

  • the employee notice is posted in conformity with
    the applicable physical and electronic posting
    requirements contained in 29 C.F.R. 471.2(d) and
    (f). 29 C.F.R. 471.10
  • the provisions of the employee notice clause are
    included in government contracts, subcontracts
    and purchase orders. 29 C.F.R. 471.10
                                                   23
What happens if a complaint is filed or an
OFCCP evaluation finds noncompliance?
• For both complaints and compliance
  evaluations, OFCCP will investigate and
  develop a case record, which will include
  findings regarding compliance. 29 C.F.R. 471.11
• If the record indicates a violation, OFCCP will
  make reasonable efforts to obtain compliance
  through conciliation. 29 C.F.R. 471.10 and
  471.12

                                                    24
What conduct violates the rule?
A contractor may be found in violation of the rule based
  on:
• The contractor’s failure or refusal to comply with
  requirements regarding employee notice or inclusion
  of the contract clause in its subcontracts.
• The contractor’s failure or refusal to allow a compliance
  evaluation or complaint investigation to be conducted;
• The contractor’s refusal to cooperate with the
  compliance evaluation or complaint investigation,
  including failure to provide information sought during
  those procedures.

 29 C.F.R. 471.13                                             25
Other contractor conduct that may violate
the rule
A contractor may also be found in violation of the rule
  based on:
• A contractor’s refusal to take such action with respect
  to a subcontract as directed by the Director of OFCCP
  or the Director of OLMS as a means of enforcing
  compliance with the provisions of this part.
• A subcontractor’s refusal to adhere to requirements of
  this part regarding employee notice or inclusion of the
  contract clause in its subcontracts.

   29 C.F.R. 471.13
                                                            26
What happens if contractors fail or refuse
to comply with the requirements of rule?
• If conciliation efforts fail, and contractors
    continue not to comply with the rule, violations
    may result in enforcement proceedings. 29 C.F.R.
    471.12
•   The Director of OFCCP will refer the matter to the
    Director of OLMS, who may take enforcement
    action under 471.13.



                                                         27
What does enforcement action involve?
• Contractors will be provided an opportunity for a
    hearing before the administrative law judge (ALJ).
•   The ALJ’s decision may be appealed to the Labor
    Department’s Administrative Review Board (ARB).
•   If the ARB concludes that a contractor has violated this
    rule, the ARB will order the contractor to cease and
    desist from the violations, require the contractor to
    provide appropriate remedies, and/or impose
    appropriate sanctions and penalties.


     29 C.F.R. 471.13
                                                           28
What sanctions and penalties may be
imposed for noncompliance?
• Contractors that violate the regulations may be
  subject to sanctions, including suspension or
  cancellation of the contract. 29 C.F.R. 471.14
• Contractors that violate the regulations may be
  debarred from holding federal contracts. 29 C.F.R.
  471.14
• Contractors may be reinstated upon a finding that
  the contractor or subcontractor has come into
  compliance and has shown that it will comply in
  the future. 29 C.F.R. 471.16

                                                       29
For further information about the
requirements of this regulation, contact:
 Office of Federal Contract Compliance Programs
   Call OFCCP toll free at (800) 397-6251
   Send e-mail to OFCCP at: OFCCP-Public@dol.gov
   Contact your local OFCCP District or Area office
     (http://www.dol.gov/ofccp/askofccp.htm)
 Office of Labor Management Standards
   Call OLMS at (202) 693-0123
   Send e-mail to OLMS at: olms-public@dol.gov
   Contact your local OLMS District office
     (http://www.dol.gov/olms/contacts/lmskeyp.htm )

                                                       30
Questions?




             31
Are public employers that are federal
contractors, such as state universities,
impacted differently by this Executive Order
compared to private sector employers?

 Public employers are excluded from the rule’s
  application. Specifically, Section 471.4(a) excludes the
  U.S. and the states and their political subdivisions.



                                                             32
Are "non-union employers" also required to post the
notice and include the clause in their government
contracts?
Similar question: Does the posting apply to federal
subcontractors that do not currently deal with a union?

     Yes, employers that do not presently deal with unions as
      representatives of employees, or maintain a policy of not
      wanting to deal with unions as representative of employees,
      must nevertheless comply with the regulations if they are a
      federal contractor or subcontractor.


                                                                    33
Do we continue to post the notice required
by Executive Order 13201 as well as the
notice required by this executive order?

  No, Executive Order 13201 has been repealed, and so
  have the Labor Department’s regulations
  implementing that Executive Order.



                                                         34
Does the clause need to be listed verbatim
in the subcontract or can it be included by
citation to 29 CFR Part 471?
 The regulation permits incorporation of the contract
 clause by reference to 29 CFR Part 471 Appendix A.
 See Sec. 471.2(b).




                                                         35
Does the Department of Labor have free
posters that we can download/print and
distribute to our various locations?

 Yes, go to DOL.gov/OLMS




                                         36
Does the new requirement apply to contracts
in place before the effective date of the final
rule, or does it just apply to contracts entered
into after the effective date of the final rule?
  The regulation applies to contracts resulting from solicitations
   issued after the effective date of the final rule, which is June 21,
   2010. The Federal Acquisition Regulation Council is working on
   an amendment to the Federal Acquisition Regulations, and we
   expect that interim final rule to issue shortly. For example, if a
   solicitation was issued by an agency on June 1, 2010, the resulting
   contract (even if executed after June 21, 2010) would not be
   subject to the Order’s requirements. On the other hand, if the
   solicitation is issued on or after June 21, 2010, any resulting
   contract is subject to the Order and may be reviewed.

                                                                      37
8.
Are contractors whose projects are funded
by federal grants or loans required to post
the notice?
 The rule excludes “federal financial assistance” from
 the definition of "government contract." "Federal
 financial assistance" generally means grants or loans of
 federal funds. If the project is preformed based on
 "federal financial assistance" rather that a government
 contract or subcontract, then the rule does not apply.
 See 29 CFR 471.1

                                                          38
Does the rule apply to hospitals, physician
groups, and other medical care facilities
because of their support or involvement with
Medicare, Medicaid, etc? In other words does
Medicare constitute as federal contract?
 Reimbursements made pursuant to Medicare Parts A
  and B, and Medicaid are Federal financial assistance,
  not contracts.
 Medicare Parts C & D, TRICARE, and FEHPB may be
  federal contracts depending on the circumstances.
                                                          39
How long must you keep the notice posted?


 Federal contractors and subcontractors must keep the
 required notices posted through the duration of the
 contract and subcontract.




                                                         40
If most or all of a contractor's employees
telecommute, how do they comply with the
posting requirements?
  In a case where most or all of an employer’s workforce
   telecommutes, then that employer probably posts notices
   electronically to those employees about the terms and
   conditions of employment. In that case, this notice must be
   posted electronically. And the notice must be posted on the
   employer's website with a link to DOL's website with the poster,
   and the link must read: Important Notice about Employee
   Rights to Organize and Bargain Collectively with Their
   Employers

                                                                      41
If a covered contractor operates from several
locations, but only one location has employees
working on the federal contract, does the contractor
need to post the notices in every office or just in the
one with employees working on a federal contract?
 The contractor must post the notice where NLRA-covered employees
  engage in activities related to the performance of the contract. The rule
  has a broad definition of contract-relatedness at Sec. 471.2(d)(2), and
  includes indirect or auxiliary functions that support the government
  contract. If, under the legal test, employees in a plant or office do not
  meet the contract-relatedness test, then no posting is required If
  employees not engaged in the performance of the federal contract or
  subcontract work in the same plant or office as contract-related
  employees, then that plant or office must get the notice posted.


                                                                          42
If we are a sub-contractor, and we use other
companies to do some of the contract work, do
we classify them as a sub-sub-contractor and
need to amend contracts with them? Is a
purchase order considered a contract?
 Yes, all subcontractors must include the contract provisions and
  the requirement to post in contracts with their subcontractors,
  and those subcontractors of subcontractors must do the same.
  The Executive Order and the rule apply to subcontractors at all
  tiers. In addition, purchase orders are contracts under the rule.


                                                                      43
Is there a sample wording recommendation
that companies can insert into their
subcontracts?
  The required contract provisions are not just samples.
   The exact text must be included by contracting
   agencies in the prime contract, and the prime
   contractors must include the identical contract
   provisions in their subcontracts. The 4-paragraph
   contract provisions can be found at Appendix A to
   Subpart A, 29 CFR 471. They can be incorporated by
   reference to 29 CFR Part 471 Appendix A.
                                                        44
Is there any provision to exempt federal
government contracts?
  No, contractors cannot exempt themselves or their
  subcontractors by inserting some provision in contracts in an
  attempt to do so. But recall that the contracts and
  subcontracts that are not covered by the rule include:
     prime contracts under the Simplified Acquisition
      Threshold, which is currently set at $100,000.
     subcontracts below $10,000.
     contracts and subcontracts for work performed exclusively
      outside the territorial United States.
  See Part 471.3 for exemptions that the contracting department
     or agency can request from the Director of OLMS.
                                                            45
Does this apply to the construction
industry?

      Yes.




                                      46
We sell HVAC parts, equipment and supplies to
federal contactors, but we do not install, repair or
manufacture what we sell. Does Exec. Order
13496 with its posting requirement apply to us?

   It depends on whether the sale of parts and equipment to a prime
    contractor is a subcontract of the government contract. Under the rule,
    subcontracts are any agreement or arrangement between a contractor
    and any person
      for the purchase, sale or use of personal property or non-personal
       services that, in whole or in part, is necessary to the performance of
       any one or more contracts; or
      Under which any portion of the contractor’s obligation under any
       one or more contracts is performed, undertaken or assumed.
                                                                           47
We only have one facility - with a union - that
produces products for Federal contracts. Must
this notice be given to all employees regardless
of their union status even if they do not work
on products contained in Federal contracts?

 First, the presence or absence of a union representing the
  employer's employees does not drive the requirement to post.
 Second, the notice must be posted where NLRA-covered
  employees engage in activities related to the performance of the
  contract, regardless of whether or not they are represented by a
  union.
                                                                     48
What is the prime contractor's responsibility in terms
of ensuring subcontractors are compliant with this
posting? Do we have to visit all their locations to
insure their postings are compliant? Would a memo
or email suffice?
 A prime contractor must insert the contract provisions in all it
  subcontracts and must not ignore noncompliance of
  subcontractors. If the Labor Department becomes aware that a
  significant number of prime contractors are aware of and
  ignoring the noncompliance of subcontractors, then it may issue
  an order requiring the prime contractor to make diligent efforts
  to seek compliance of subcontractors, and the prime contractor
  may be subject to penalties for disobeying that order.

                                                                     49
20.
What is the related FAR clause that would
be used to incorporate this requirement
into the contract?

 Once the FAR Council publishes its companion
 regulation, which will be very soon, the FAR contract
 clause will appear in 48 CFR 52.222-40, entitled
 "Notification of Employee Rights under the National
 Labor Relations Act."



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