July 08, 2016
As federal contractors await the final regulations under the Fair Pay and Safe Workplaces (a.k.a. Blacklisting) Executive Order, the key issue of whether they will be limited to final adjudications of employment law violations, or will also include pending allegations, remains to be seen. Last week, the National Labor Relations Board announced it will begin reporting complaints issued by the NLRB General Counsel to federal contracting officers in order to assist them in making contractor responsibility determinations under the Blacklisting Executive Order. Complaints are initial determinations by the General Counsel that there is merit to an allegation of a violation, but are only a preliminary step leading to an administrative law judge's determination, which is then subject to review by the Board and the federal courts. According to the new NLRB memo, beginning with complaints issued on July 1, 2016, the NLRB will collect data on employers who are, or have been, federal contractors and report that information to a federal database. Notably, the NLRB will not forward information to the database if an employer settles or resolves an unfair labor practice case before the issuance of a complaint, thus increasing the pressure on employers to settle even if they believe there has been no violation. Currently, the final rule implementing the Blacklisting Executive Order is at OMB for review, and is expected to be published before September 1. Meanwhile, congressional resistance continues. This week, by a vote of 239-185, the House passed the FY2017 Financial Services, General Government Appropriations Bill, which included a provision delaying the implementation of the rule and guidance until GAO conducts a comprehensive study, to include a true economic analysis and a discussion of whether the provisions in the rule and guidance are even feasible.