(UPDATE: Final rule published on May 20, 2010)
The U.S. Department of Labor (DOL) has submitted to the Office of Information and Regulatory Affairs (OIRA) a final rule prescribing the details of the notice of employee rights under Federal labor laws required by Executive Order 13496. OIRA, part of the Office of Management and Budget (OMB), reviews draft proposed and final regulations and develops and oversees the implementation of government-wide policies in the areas of information policy, privacy, and statistical policy.
The final rule was received by OIRA on February 17, 2010, and is currently under review. Executive Order 12866, which governs the process under which OIRA reviews agency draft and proposed final regulatory actions, limits the OIRA review period to 90 days (there is no minimum review period). As such, OIRA’s final action would be expected by mid-May; however, the review period may be extended indefinitely by the head of the rulemaking agency (in this case, the DOL’s Office of Labor-Management Standards). Also, the OMB Director may extend the review period on a one-time basis for no more than 30 days.
President Obama signed Executive Order 13496 (“Notification of Employee Rights Under Federal Labor Laws”) on January 30, 2009. E.O. 13496 required the Secretary of Labor to prescribe the size, form, and content of the notice to be posted by a contractor describing the rights of employees under Federal labor laws, consistent with the policy set forth in section 1 of the order. The DOL published its proposed rule on August 3, 2009, and the subsequent public comment period ended on September 2, 2009.
The proposed rule stated that OFCCP may enforce the Order through either a review specifically targeting E.O. 13496 compliance only, or during the course of a regular compliance evaluation, or in response to a complaint. No specifics were given regarding the selection of contractors for an E.O. 13496-only review.
The proposed rule also noted that employees of covered contractors can file written complaints that the contractor has failed to comply with the Order to either OLMS or OFCCP. Complaints will be investigated by OFCCP, and the DOL estimates that they will receive approximately 50 such complaints per year. If non-compliance is not resolved through conciliation, OFCCP must refer the case to OLMS, who then may take it to the Solicitor of Labor for enforcement. The ultimate penalties for non-compliance can include cancellation or suspension of current contracts, or debarment from future contracts including extension of existing contracts.
Contractors should stay tuned to see what changes, if any, are made to the final rule based on the comments received by the DOL. Given OFCCP’s recent increase in scheduling on-site compliance reviews and repeatedly stated new interest in fielding and investigating individual employee complaints, the final implementation of the E.O. 13496 posting requirements will be germane to contractors’ compliance efforts.
by Fred Satterwhite, Senior Consultant, DCI Consulting Group