E-Alerts
Union Rights Poster For Federal Contractors Issued By U.S. Department of Labor
On May 20, 2010, the U.S. Department of Labor (“DOL”) published a final rule requiring covered federal contractors to post a prescribed notice (the “Notice”) describing the rights of employees under the National Labor Relations Act (“NLRA”). The final rule implements Executive Order 13496 and becomes effective June 19, 2010.
The obligation to post the Notice generally applies to federal contracts and subcontracts at any tier resulting from solicitations issued after June 19, 2010. However, the obligation does not extend to (a) federal contracts below the simplified acquisition threshold, currently $100,000; (b) federal subcontracts of less than $10,000, and (c) employers not covered by the NLRA, e.g., public-sector employers and agricultural employers.
Please note that employers nationwide are experiencing an increase in government audits that are intended to show that employers are federal contractors – even when the employers assert that they are not federal contractors or subcontractors. Please see “Are You A Government Contractor Or Sub-Contractor” If So, Beware: The OFCCP May Be Watching You” for a detailed explanation of how to determine whether your organization is a federal contractor or subcontractor.
Posting Requirement
Covered federal contractors and subcontractors must post the Notice in conspicuous locations at their workplaces. Employers can satisfy this requirement by posting the Notice in all places where notices to employees are customarily posted. Importantly, if a significant portion of an employer’s workforce is not literate in English, the employer must post a translated version (or versions, as the case may be) of the Notice. The final rule does not provide guidance on this requirement.
Additionally, employers that customarily post employee notices both physically and electronically must post the Notice both physically and electronically. Electronic postings must include a link to the DOL website containing a copy of the notice. The link must state, “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.”
Noncompliance with the posting requirement may result in the cancellation, termination or suspension of existing federal contracts, as well as the employer’s debarment from future federal contracts.
Content Of Notice
The Notice informs employees of their rights to bargain collectively and to associate, self-organize and designate representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment. The Notice also provides examples of unlawful employer and union conduct that interferes with those rights and instructs how employees may contact the National Labor Relations Board—the federal agency responsible for enforcing the NLRA—to inquire about possible NLRA violations.
The Notice is available for download from the DOL’s website.
Covered employers may either download the Notice from the DOL’s website or obtain the Notice from the federal contracting agencies with which they have contracts. The posted Notice must be 11 x 17 inches or larger. Employers that do not have a printer capable of printing a single 11 x 17-inch sheet of paper may download the poster onto two 8½ x 11-inch sheets of paper and tape the two sheets together.
Background Of Executive Order 13496
Executive Order 13496 is one of three executive orders issued by President Obama last year for the purpose of creating a strong labor movement among workers employed by federal contractors and subcontractors. Issued on January 30, 2009, Executive Order 13496 purports to promote “economy and efficiency in Government procurement” by ensuring that employees of federal contractors and subcontractors are informed of their rights under federal labor laws.
Executive Order 13496 revoked Executive Order 13201, which required federal contractors to notify employees of their rights not to join a union and to “opt out” of paying union fees unrelated to the administration of the collective bargaining agreement. These rights were determined by the United States Supreme Court in Communication Workers of America v. Beck, 487 U.S. 735 (1988). Executive Order 13201 had been issued by President Bush in 2001.
* * *
This requirement that federal contractors and subcontractors notify employees of their rights under federal labor law will likely result in more – and more intense – union organizing campaigns. This is likely to have a profound effect on labor costs and activities for federal contractors and subcontractors.
In light of the imminent effective date of June 19, 2010, we urge federal contractors and subcontractors to act now to (a) implement lawful policies and procedures designed to minimize the likelihood and effectiveness of union organizing campaigns, (b) develop plans for effectively communicating with employees, key constituents, and the general public about their positions on labor organizations, collective bargaining, and related matters, and (c) determine how best to marshal their internal and external resources to achieve these goals as cost-effectively as possible.
As always, the Firm is available to assist employers in determining and complying with their obligations and rights as federal contractors and subcontractors. Please do not hesitate to contact us with any questions.
