On February 2, 2009, President Obama issued Executive Order 13496, Notification of Employee Rights Under Federal Labor Laws. Pursuant to Executive Order 13496, covered federal contractors and subcontractors will soon be required to post new, lengthy notices of their employees’ rights under federal labor law. The U.S. Department of Labor (“DOL”) issued its Proposed Rule implementing this Obama Executive Order on August 3, 2009.
The Executive Order requires federal contractors to post notices informing employees of their right to form unions and collectively bargain. This requirement must be included in every federal contract along with language giving the government the right to terminate/suspend the contract or even debar the contractor for noncompliance.
Under Executive Order 13496, requires every federal contractor to post a notice informing employees of their rights to form unions and collectively bargain. This Executive Order overturns an order signed by President George W. Bush early during his administration.
The Executive Order signed by President Obama focuses specifically on situations where a federal contract expires. Often, a new contract is awarded for the same service at the same location. Sometimes, the new contract is awarded to the same company that held the previous contract. For example, this may occur when a company has a contract to run a military base retail operation.
Often the new contractor hires all or many of the previous contractor’s employees. After all, these employees are already trained and know how the operation works. However, sometimes the employer will lay off all the previous workers and hire new employees, often at the minimum wage.
According to the Executive Order, “The Federal Government’s procurement interests in economy and efficiency are served when the successor contractor hires the predecessor’s employees. A carryover work force reduces disruption to the delivery of services during the period of transition between contractors and provides the Federal Government the benefits of an experienced and trained work force that is familiar with the Federal Government’s personnel, facilities, and requirements.”
According to the DOL’s Proposed Rule, the required notice will be included in all Federal contracts, except those involving purchases below the simplified acquisition threshold (currently $100,000) and contracts resulting from solicitations issued prior to the effective date of the final rule. Subcontracts necessary to the performance of the prime contract that fall below the simplified acquisition threshold, however, are not exempted and must include the notice.
Under the DOL’s Proposed Rule, the notice includes details about the rights of employees under the National Labor Relations Act, including:
- Forming a union and participating in various union-related activities;
- Choosing not to join a union or participate in such activities;
- Protection from illegal actions by an employer as a result of union activities;
- Protection from illegal actions by a union based on their support of the union.
The notice also includes detailed instructions for contacting the NLRB if employees feel that their rights have been violated. The Proposed Rule states that the notice is to be included verbatim in a contract, subcontract, or purchase order, rather than incorporated by reference only.
If notices are provided to employees electronically, contractors must display a link to the DOL’s web page that contains the full text of the notice. Also, the link itself must include the following text on the contractor’s web site:
RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT
‘‘It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.’’
The 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.