On May 20, the U.S. Department of Labor (DOL) will publish its final rule implementing Executive Order 13496 and prescribing the size, form, and content of the notice to be posted by a contractor describing the rights of employees under Federal labor laws in the Federal Register. The final rule becomes effective on June 21, 2010.
The final rule includes a lengthy discussion of the 86 comments received during the public comment period that ended on September 2, 2009, and reflects several changes based on that feedback. (The proposed rule was
discussed in detail here.) Highlights from the final rule document include:
- Approximately one-third (1/3) of the commenters argued that the content of the Notice of Proposed Rulemaking (NPRM) notice was not balanced and promoted unionization. In response, the DOL modified some language in the final notice, including a list of five examples of unlawful union conduct (vs. a single statement in the NPRM notice).
- Despite several comments suggesting that the final notice include an explanation of employee rights under Beck, the DOL chose not to include such language, citing "space limitations" and a "policy choice" to move away from the language of the E.O. 13201 notice (which was rescinded by E.O. 13496).
- In a prudent move that no doubt will be welcomed by the contractor community, the DOL will permit incorporation of the notice by reference in contracts and subcontracts, rather than requiring that the full text of the notice be included in every contract. The DOL received 10 comments regarding this section of the NPRM notice- nine of which stated that it should allow incorporation by reference. Several commenters pointed out that the requirement as written in the NPRM was inconsistent with E.O. 11246, VEVRAA, and Section 503 of the Rehabilitation Act- all of which are enforced by the DOL.
- Subcontracts of less than $10,000 are exempted, but all tiers of subcontractors above that threshold are covered. The DOL made clear statements that they are going to interpret the "necessary to the performance of" the government contract criterion as broadly as possible, which is consistent with recent OFCCP presentations regarding jurisdiction. The takeaway message is that the DOL is setting the bar very high for subcontractors to demonstrate that they are not covered by these executive orders.
- Employers will have to post copies of the poster in languages other than English where employees not literate in English make up a “significant portion of a contractor’s workforce”.
- For electronic postings of the notice, the required text for the link to the DOL web site containing the full notice must be "Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.” As with the physical posters, the link must be provided in languages used by a "significant portion" of the contractor's workforce.
- Third-party vendors who sell "all-in-one" employment law posters may be unhappy with the final rule- while the DOL did acknowledge that contractors use such posters and said they will be permitted, the final rule states that such posters cannot "alter the size, color, or content of the poster provided by the Department."
- OFCCP scheduling procedures for evaluations of compliance with the final rule were not described, leaving open the possibility of "13496-only" reviews in addition to regular compliance reviews.
More information about the final rule, including PDF copies of the poster, are available on the DOL web site. OFCCP has added a compliance page and presentation to their web site, and will be presenting a webinar on June 3 and June 10 to provide guidance on compliance with the final rule.
by Fred Satterwhite, Senior Consultant, DCI Consulting Group
