Blacklisting' OR 'Bad Actor' Executive Order 13673

Officially known as the "Fair Pay and Safe Workplaces" Executive Order, Executive Order 13673 now consists of proposed guidance from the Department of Labor ("DOL") and proposed regulations from the Federal Acquisition Regulatory Council ("FAR"). It is generally considered to be one of the broadest, most demanding, and potentially most expensive of the Executive Orders issued by President Obama in 2014. The order, guidance and regulations will require federal prime contractors and subcontractors with a construction, service or supply contract of $500,000 or more to self-report violations for the prior three years of 14 different federal labor and employment laws (and also comparable state laws).

The laws of general application to all employers are: The Fair Labor Standards Act (basic wage hour law), The Occupational Safety and Health Act ("OSHA"), The National Labor Relations Act (NLRA; union activity), The Family and Medical Leave Act ("FMLA"), Title VII of the Civil Rights Act of 1964 (race, national origin, sex, pregnancy, religion; discrimination, harassment, and retaliation), the Americans with Disabilities Act (discrimination, reasonable accommodations), and the Age Discrimination in Employment Act ("ADEA"; discrimination, retaliation). Laws applicable to federal government contractors include: The Davis Bacon Act (area wage and benefit determinations and job classifications), The Service Contract Act, Executive Order 11246 (equal employment opportunity and affirmative action; special provisions for construction companies), Section 503 of the Rehabilitation Act of 1973, The Vietnam Era Veterans Readjustment Assistance Act, and Executive Order 13658 (establishing a minimum wage for federal contractors).

In the initial bidding process, covered contractors and subcontractors will have to check a box as to whether they have had a violation of any of the above Acts in the last three years. Once a bidder is selected as a finalist, if they indicated they had a violation, then the specifics would have to be disclosed on a publicly available website. After disclosure, the contracting officer in charge of the project would maintain responsibility for determining whether the disclosed violations qualified as a "serious, repeated, willful, or pervasive" violation to determine whether the company satisfies the requirement for having a satisfactory record of integrity and business ethics. Those terms have little meaning under most of the fourteen...

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