President Barack Obama’s “Fair Pay and Safe Workplaces” Executive Order creates new self-reporting requirements for federal contractors, an apparent effort to shame these employers (and appeal to the Administration’s labor constituency) by having them disclose an array of labor- and employment-related violations, including adverse arbitration awards, regardless of their relationship to the actual performance of the federal contract.

Federal contractors and subcontractors will be required to disclose violations of federal and state labor and employment laws for the previous three years, including, but not limited to, violations of the National Labor Relations Act, Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, and Family and Medical Leave Act. These disclosures must be made pre-award, and contractors will be required to update their violation information every six months during the performance of a contract.  This information then will be evaluated and considered for purposes of determining a contract award and for evaluating whether remedial measures may be necessary to punish contractors that are “serious, repeated, willful or pervasive violat[ors]” of the law.  A new government apparatchik, called a “Labor Compliance Advisor,” will help agency contracting officers decide whether a prospective contractor “is a responsible source that has a satisfactory record of integrity and business ethics,” among other decisions under the Executive Order.

Contractors — still adjusting to President Obama’s other recent executive orders, including Executive Order 13658 (raising the minimum wage for contractors to $10.10 per hour, effective January 1, 2015) and recent amendments to Executive Order 11246 (barring discrimination on the basis of sexual orientation or gender identity) — are concerned the new Order goes too far.  Rather than competing on traditional factors such as price, quality of work and reputation, contractors now also will be evaluated by labor compliance advisors within each agency for their past missteps, even if those missteps have been previously remedied.

Further, it is unclear how this Order will be implemented and when remedial measures, such as potential debarment, will be implemented.  Contractors  worry  that these uncertainties may impact significantly their ability to compete for contracts.  Although the White House has stated that further regulations and guidance will be forthcoming, this has not eased growing  apprehensions that President Obama’s penchant for  executive orders aimed at tightening regulation of  federal contractors will  hurt market competition and each contractor’s ability to be judged on its merits.

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Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.