In response to the United States Department of Labor’s request for public comments on its proposed rulemaking implementing President Barack Obama’s Executive Order No. 13496, Jackson Lewis LLP, on behalf of its clients and other employers, has provided the Department with detailed comments and suggestions for improvements to the proposed rule. The Executive Order, signed January 30, 2009, requires covered federal contractors and subcontractors post a notice apprising employees of the right to unionize and to engage in certain protected activities under federal labor laws. It and the proposed rule could have a profound effect on federal contractors since a failure to comply with the posting requirement or with the terms of the notice could result in the loss of Federal contracts or debarment. (For more information on the Executive Order, see President Signs Three Pro-Union Executive Orders and DOL Proposes Regulations Clarifying Contractors' Obligation to Notify Employees of Right to Organize.)
Jackson Lewis, one of the nation’s largest labor and employment law firms counseling federal contractors and others, submitted its comments on September 2, 2009. The full text of the comments may be accessed here (pdf). A summary of our comments follows:
NLRA Preemption - The Firm maintained the Executive Order is preempted by the National Labor Relations Act (“NLRA”), the nation’s principal labor relations law, to the extent it seeks to impose obligations and penalties on contractors and subcontractors beyond those already established by the NLRA.
Scope of Rule – The Firm objected to the Department’s attempt to make primary contractors responsible for compliance by their subcontractors. The Department should clarify that primary contractors have no obligation to police subcontractors, other than to adhere to specific enforcement directives of the Secretary. With respect to the obligation of primary contractors to place in subcontracts language requiring subcontractors to post the required notice, the Firm suggested the Department impose this requirement only on subcontracts valued in excess of $100,000. This amount is consistent with the minimum threshold applicable to primary contracts under the Executive Order. It would exclude subcontractors who perform minimal work from being subject to the Order’s obligations.
Limitations on Posting Obligation – The Firm recommended that the Department limit the posting obligation to cover only employees who perform work directly related to the performance of the contract. Further, the Firm suggested the Department expressly permit employers who post notices electronically and physically to post the required notice only physically. Electronic posting would cause the notice to be sent to the vast majority of employees who do not perform work related to the contract. Additionally, the Firm suggested the Department permit the required notice to be consolidated into commercially available “all-in-one” posters employers already use to comply with other federal and state law posting requirements.
Exemption for Employees Working on Contracts Outside the United States - The Firm suggested that the Department add an exemption to the proposed rule for employees working on contracts and subcontracts in foreign countries who are not subject to the NLRA. This exemption is modeled on a similar exclusion made by the Office of Federal Contract Compliance Programs (“OFCCP”) in the affirmative action context.
A More Reasonable Notice - The Firm urged the Department to adopt a shorter, more balanced notice. The Executive Order’s purpose is to enable employees to make informed choices regarding their right to unionize (or not unionize) and the proposed longer, more detailed notice may frustrate this objective by confusing and intimidating the reader. The Firm also pointed out specific concerns with the contents of the proposed notice.
Adjudication of Unfair Labor Practices - The Firm recommended the Department make clear in the final rule that the National Labor Relations Board will have exclusive jurisdiction to adjudicate disputes arising from alleged violations of the substantive notice. Such disputes would involve rights conferred by the NLRA, which the Board administers. The Firm pointed out the possibility of conflicting decisions and wasted government resources.
Reinstatement After Debarment - Finally, the Firm recommended improvement of the debarred-contractor reinstatement process. To promote transparency, we suggested the Department incorporate the reinstatement guidelines contained in other laws regulating federal contracts that call for written decisions explaining why a reinstatement request was granted or denied.
No date has been set for the issuance of the final rule.