Final Rules on Blacklisting, Sick Leave Forthcoming

On May 18, the administration released the latest regulatory agenda outlining their plans for their final months. The agencies are looking to work on several rulemakings impacting federal contractors. An update on rulemakings affecting the construction industry is outlined below.

BLACKLISTING PROPOSAL
What to Expect: The Federal Acquisition Regulatory (FAR) Council plans to issue a final rule implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673, commonly referred to as the blacklisting proposal, in August 2016.

About the Proposal: The proposal would require federal contractors and subcontractors to disclose any “violations” of 14 federal labor laws that occurred in the three years prior to any procurement for federal government contracts/subcontracts exceeding $500,000.  The proposal also requires contractors and subcontractors to update disclosures of labor law violations every six months while performing covered government contracts. Reported violations may then be used to disqualify contractors and/or subcontractors from performing federal work, based on a complicated and seemingly unconstitutional set of procedures proposed by the federal agencies.

ABC’s Actions: ABC submitted comments urging the withdrawal of the FAR Council’s Notice of Proposed Rulemaking  and the Department of Labor’s (DOL) Notice of Proposed Guidance implementing the blacklisting proposal. To view a summary of ABC’s efforts in opposition to the proposal, visit abc.org/blacklisting.

PAID SICK LEAVE
What to Expect: DOL plans to issue a final rule  in September 2016.

About the Proposal: The proposed rule requires certain federal contractors to offer employees up to seven days of paid sick leave annually, including paid leave for family care. The paid sick leave required by the proposal is in addition to a contractor’s obligations under the Service Contract Act (SCA) and Davis-Bacon Act (DBA). Therefore, a contractor may not receive credit toward its prevailing wage or fringe benefit obligation under the SCA and DBA for paid sick leave provided in satisfaction of the requirements of the proposed rule.

 ABC’s Actions: ABC submitted comments  on the proposal, stating it exceeds the executive branch’s constitutional and statutory authority. The comments also noted that if the DOL does not withdraw the proposal, at a minimum the DOL should conform the proposal to the existing requirements of the DBA and SCA in order to avoid confusion and unnecessary burdens on government contractors.

OTHER UPCOMING PROPOSALS

Office of Federal Contract Compliance Programs (OFCCP):
• Sex Discrimination – Final Rule, May 2016  
• Construction Contractors’ Affirmative Action Requirements – Proposed Rule, August 2016
• Requirement to Report Summary Data on Employee Compensation - Long Term Action