How to Comply with Executive Order 13496 and the Labor Department’s Regulations Requiring Notice to Employees of Rights

1. How to Comply with Executive Order 13496 and the Labor Department’s Regulations Requiring Notice to Employees of Rights under the National Labor Relations Act New Employee Notification Requirements for Federal Contractors and Subcontractors: 1

2. Federal Contractors and Subcontractors must Post Notice to Employees of Labor Law Rights Beginning on June 21, 2010, federal law requires contractors entering into contracts with the Federal government to: • post notices informing employees about their rights under Federal labor law and • include provisions in their contracts that require their subcontractors to post the same employee notice

3. What federal law requires the new notice to employees? Executive Order 13496 and the Department of Labor’s regulations implementing this Executive Order, 29 C.F.R. Part 471, which were published on May 20, 2010, require federal contractors and subcontractors to inform employees about their labor law rights.

4. What employee rights are contained in the new notice? • The notice contains rights under the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq. • The NLRA is the primary law governing relations between unions and employers in the private sector. • The law guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity.

5. What does the employee notice say? Generally, the employee notice • lists employees’ rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; • provides examples of unlawful employer and union conduct that interferes with those rights; and • indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions about the rights or to file complaints.

6. Where can we find the text of the required employee notice and the contract provisions that must be inserted into contracts? The text of the employee notice and the provisions that must be inserted into federal contracts and subcontracts agreeing to inform employees about NLRA rights can be found at 29 CFR Part 471 Appendix A.

7. Who is covered by this rule? Any contractor or subcontractor that is an employer under the NLRA must comply with this rule. Employers not covered by the NLRA are: • the United States or any wholly owned Government corporation; • any Federal Reserve Bank; • any State or political subdivision thereof; • any person subject to the Railway Labor Act; • any labor organization (other than when acting as an employer); or • anyone acting in the capacity of officer or agent of such labor organization.

8. Some employees are excluded from coverage under the NLRA Employers exclusively employing workers who are excluded from the definition of “employee” under the NLRA are not covered by the requirements of this rule. Excluded employees include those employed: • as agricultural laborers; • in the domestic service of any family or person at his or her home; • by his or her parent or spouse; • as an independent contractor; • as a supervisor as defined under the NLRA; • by an employer subject to the Railway Labor Act; or • by any other person who is not an employer as defined in the NLRA

9. What are the basic posting requirements that contractors and subcontractors must satisfy? • Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees. • In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. 29 C.F.R. 471.2(d)

10. Other requirements regarding physical posting of the employee notice Specifically, the employee notice must be posted where: • employees covered by the NLRA • engage in contract-related activity, which includes indirect or auxiliary work without which the contract could not be effectuated, such as maintenance, repair, personnel and payroll work. 29 C.F.R. 471.2(d)

11. Should contractors and subcontractors also post the notice electronically? • Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically. • Electronic posting requires contractors and subcontractors to post a link to OLMS’s website containing the employee notice where they customarily place other electronic notices to employees about their jobs. • The link must be no less prominent than other employee notices. • Electronic posting cannot be used as a substitute for physical posting. 29 C.F.R. 471.2(f)

12. How can contractors and subcontractors obtain the poster? Contractors and subcontractors can obtain the required poster 3 ways: • OLMS will print posters and provide them to federal contracting departments and agencies for supply to contractors and subcontractors; • contractors and subcontractors can request posters from OLMS or OFCCP; • contractors and subcontractors can download the poster from http://www.olms.dol.gov. Contractors may reproduce and use exact duplicate copies of the Department’s official poster. 29 C.F.R. 471.2(e)

13. Are contractors and subcontractors required to post translations of the employee notice? • Where a significant portion of contractor's workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees. • OLMS will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements. 29 C.F.R. 471.2(d), (e) and (f)

14. Posting requirements do not apply to the following: • prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000. • subcontracts below $10,000. • contracts and subcontracts for work performed exclusively outside the territorial United States. Other exceptions and exemptions may apply. See 29 C.F.R. 471.3

15. Important note about exceptions to posting requirements: No department, agency, contractor or subcontractor is permitted to procure or provide supplies or services in order to avoid the posting requirements. 29 C.F.R. 471.3(a)

16. Can employees file complaints? • Employees may file complaints with OLMS or DOL’s Office of Federal Contract Compliance (OFCCP) about contractors and subcontractors that do not comply with the Labor Department’s posting requirements. 29 C.F.R. 471.11 • Employees may also file complaints if the required contract provisions are not included in contracts and subcontracts. 29 CFR 471.11

17. What must be in complaints? • Complaints must be in writing and must include the complaining employee’s contact information and signature. 29 C.F.R. 471.11 • Complaints must contain sufficient information about the location of the alleged violation and any other information that will assist in resolving the complaint. 29 C.F.R. 471.11

18. Compliance evaluations • In addition to employee complaints, OFCCP may conduct evaluations to determine compliance. 29 C.F.R. 471.10 • Compliance evaluations may be conducted to determine compliance with this regulation, or may be done in conjunction with evaluations of contractor compliance with other laws and regulations enforced by the Department. 29 C.F.R. 471.10

19. What will a compliance evaluation involve? During an evaluation, OFCCP will determine whether: • the employee notice is posted in conformity with the applicable physical and electronic posting requirements contained in 29 C.F.R. 471.2(d) and (f). 29 C.F.R. 471.10 • the provisions of the employee notice clause are included in government contracts, subcontracts and purchase orders. 29 C.F.R. 471.10

20. What happens if a complaint is filed or an OFCCP evaluation finds noncompliance? • For both complaints and compliance evaluations, OFCCP will investigate and develop a case record, which will include findings regarding compliance. 29 C.F.R. 471.11 • If the record indicates a violation, OFCCP will make reasonable efforts to obtain compliance through conciliation. 29 C.F.R. 471.10 and 471.12

21. What conduct violates the rule? A contractor may be found in violation of the rule based on: • The contractor’s failure or refusal to comply with requirements regarding employee notice or inclusion of the contract clause in its subcontracts. • The contractor’s failure or refusal to allow a compliance evaluation or complaint investigation to be conducted; • The contractor’s refusal to cooperate with the compliance evaluation or complaint investigation, including failure to provide information sought during those procedures. 29 C.F.R. 471.13

22. Other contractor conduct that may violate the rule A contractor may also be found in violation of the rule based on: • A contractor’s refusal to take such action with respect to a subcontract as directed by the Director of OFCCP or the Director of OLMS as a means of enforcing compliance with the provisions of this part. • A subcontractor’s refusal to adhere to requirements of this part regarding employee notice or inclusion of the contract clause in its subcontracts. 29 C.F.R 471.13

23. What happens if contractors fail or refuse to comply with the requirements of rule? • If conciliation efforts fail, and contractors continue not to comply with the rule, violations may result in enforcement proceedings. 29 C.F.R. 471.12 • The Director of OFCCP will refer the matter to the Director of OLMS, who may take enforcement action under § 471.13.

24. What does enforcement action involve? • Contractors will be provided an opportunity for a hearing before the administrative law judge (ALJ). • The ALJ’s decision may be appealed to the Labor Department’s Administrative Review Board (ARB). • If the ARB concludes that a contractor has violated this rule, the ARB will order the contractor to cease and desist from the violations, require the contractor to provide appropriate remedies, and/or impose appropriate sanctions and penalties. 29 C.F.R 471.13

25. What sanctions and penalties may be imposed for noncompliance? • Contractors that violate the regulations may be subject to sanctions, including suspension or cancellation of the contract. 29 C.F.R. 471.14 • Contractors that violate the regulations may be debarred from holding federal contracts. 29 C.F.R. 471.14 • Contractors may be reinstated upon a finding that the contractor or subcontractor has come into compliance and has shown that it will comply in the future. 29 C.F.R. 471.16

26. For further information about the requirements of this regulation, contact: • Office of Federal Contractor Compliance Programs • Call OFCCP toll free at 1-800-397-6251 • Send e-mail to OFCCP at: OFCCP-Public@dol.gov • Contact your local OFCCP District or Area office (which can be found at http://www.dol.gov/ofccp/askofccp.htm). • Office of Labor Management Standards • Call OLMS at (202) 693-0123 • Send e-mail to OLMS at: olms-public@dol.gov • Contact your local OLMS District office (which can be found at http://www.dol.gov/olms/contacts/lmskeyp.htm ).