Federal Contractors should be on the lookout for a number of items listed in the latest regulatory agenda, released November 21, which lists the priorities of the administration and the rulemakings they expect to release this year.
The rulemakings below will have an impact on federal contractors:
Blacklisting Executive Order
What to Expect: The Federal Acquisition Regulatory (FAR) Council is aiming to release a proposed rule in January 2015. While not listed on the regulatory agenda, it is expected that the DOL will issue regulations or guidance on the Executive Order.
About the Proposal: On July 31, President Obama issued Executive Order 13673 (EO) that instructs bureaucrats at federal agencies to determine whether a business is “responsible” enough to receive a federal contract based on a subjective review of each company’s recent compliance history with labor and safety laws.
Some of the key changes resulting from the EO require contractors to disclose any violations of 14 federal and equivalent state and local workplace laws committed within the past three years when competing for and completing federal contracts worth more than $500,000. This controversial executive action changes (perhaps illegally) a number of complex federal procurement and labor laws and attempts to impose a standard that a number of federal agencies can’t even comply with for their own employees.
Non-Retaliation for Disclosure of Compensation Information
What to Expect: A proposed rule was issued on September 17, with comments from the public due Dec. 16. It is listed on the regulatory agenda as being finalized by September 2015.
About the Proposal: The proposal prohibits federal contractors from retaliating against employees who discuss their compensation with fellow employees. The executive orders states “the contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.”
Summary Data on Employee Compensation
What to Expect: A proposed rule was issued on Aug. 8 with comments due Jan. 5. The regulatory agenda lists the rule as being finalized by August 2015.
About the Proposal: The proposal implements the April 8 Presidential Memorandum that would require contractors and subcontractors to submit to USDOL summary data on compensation paid to their employees, including data by sex and race.
Construction-Specific Affirmative Action Requirements
What to Expect: OFCCP expects to release a proposed rule by September 2015.
About the Proposal: Having finalized its rules drastically altering federal contractors’ existing affirmative action and nondiscrimination obligations for individuals with disabilities and veterans in 2013, DOL’s OFCCP now plans to make additional changes to the affirmative action obligations for federal construction contractors. The changes are expected to include an entirely new framework for regulating the industry and establish a new "mega" class of construction projects.
What to Expect: DOL’s Wage and Hour Division (WHD) plans to issue a proposed rule by February 2015.
About the Proposal: In March, President Obama issued a memorandum directing DOL to “modernize and streamline” overtime regulations for executive, administrative, and professional employees and has the potential to affect all employers covered under the Fair Labor Standards Act (FLSA), including the majority of construction contractors, subcontractors and suppliers.
While no details have been made public, DOL is believed to be considering an increase in the current overtime regulation’s salary threshold from $24,000 to $50,000. In addition, DOL will likely make significant changes to the current test used to determine whether an employee’s duties and responsibilities exempt him or her from overtime requirements.