Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

This EO also revoked an earlier EO issued by former President Bush – Notification of Employee Rights Concerning Payment of Union Dues or Fees – which had required federal contractors to post a notice (commonly known as “Beck” notices) to their employees informing them that they were not required to join or maintain membership in a labor union, and that those who were not union members – but were nonetheless required to pay dues or fees pursuant to a union security agreement – could object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment. The final rule revoking the Beck notice requirement was issued in March 2009.

The final rule to be published on May 20 prescribes requirements for the size, form, and content of the notice, outlines the exceptions for certain types of contracts, and discusses the standards and procedures related to complaints, penalties, compliance evaluations and enforcement of the notice requirement, among other things. Highlights of the final rule include the following:

• The obligations of the final rule apply to both government contractors and their subcontractors at any tier.
• The notice requirements do not apply to collective bargaining agreements under the Federal Service Labor Management Relations Statute, contracts below the simplified acquisition threshold ($100,000), contracts resulting from solicitations issued before the effective date of this rule, and contracts and subcontracts for work performed exclusively outside the territorial United States.
• The exception for government contracts for less than $100,000 applies only to the prime contract and not to subcontracts of the prime contract.
• This notification requirement does not apply to subcontracts that are de minimis in value, which the OLMS has defined as those subcontracts that do not exceed $10,000.
• Federal contractors that are covered by the Railway Labor Act (RLA) are excluded from the requirements of the EO.
• The final notice retains the provision stating that an employee has the right to not join or remain a member of a union that represents the employee’s bargaining unit. However, the OLMS notes, “further explication of Beck rights will not be included because of space limitations and because of the policy choice, as expressed in Executive Order 13496, to revoke a more explicit notice to employees of Beck rights.”
• With respect to the list of unlawful conduct to be included in the notice, the OLMS decided to modify four examples of illegal employer conduct in order to clarify them and included additional examples of unlawful union activity “to more thoroughly reflect the range of unlawful union conduct.”
• A contractor meets the requirement to post the employee notice conspicuously if the notice is prominent and can readily be seen by employees. In addition, contractors that customarily post notices to employees electronically must also post the required notice electronically. Such contractors or subcontractors satisfy the electronic posting requirement by displaying prominently on any website that is maintained by the contractor or subcontractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment, a link to the DOL’s website that contains the full text of the poster. The link to the Department’s website must read, “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.” If a significant portion of the contractor’s workforce is not proficient in English, this information must be provided in the language they speak.
• With respect to specific language included in the notice, the rule explains that the preamble has been revised from that outlined in the proposed rule to read as follows:

The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board, the federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below if you have any questions about specific rights that may apply in your particular workplace.

The coverage provision, associated with the asterisk in the introduction, states:

The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

• The poster will be available on the DOL’s website, and is designed to print on one sheet of 11-inch by 17-inch paper or two sheets of standard 8 ½-inch by 11-inch paper.

A poster with the required employee notice, including a poster with the employee notice translated into languages other than English, will be printed by the Department, and will be provided by the federal contracting agency or may be obtained from the Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210, or from any field office of the Department’s Office of Labor-Management Standards or Office of Federal Contract Compliance Programs. A copy of the poster in English and in languages other than English also may be downloaded from the Office of Labor-Management Standards website at http://www.olms.dol.gov.

This final rule takes effect 30 days after publication in the Federal Register.

For more information on this new rule, see Littler's ASAP:  DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights by David Goldstein and Jay Sumner.

Photo credit: blackred

The first part of the proposed rule includes definitions, prescribes requirements for the size, form and content of the notice, exceptions for certain types of contracts, and exemptions. Notably, the DOL explains that instead of including a simplified list of employee protections under federal labor law or copying the language used in Section 7 of the NLRA outlining an employee’s rights, the proposed notice contains “greater detail of NLRA rights, derived from Board or court decisions, implementing such rights – which will more effectively convey such rights to employees.” In addition, the proposed notice provides National Labor Relations Board (NLRB) contact information, instructions on how to file a charge with that agency, and points out the 6-month statute of limitations for lodging a complaint. The DOL invites comment on this detailed statement of employee rights, and requests input on whether any provisions should be added or deleted. The DOL also seeks comment on whether the employee notice clause in the contract, subcontract, or purchase order should be set out verbatim, rather than incorporated by reference to ensure that contractors are aware of their obligations to post the required notice.

With respect to subcontractors, the proposed rule explains that the DOL has broadly interpreted the language in the EO, and therefore proposes that the obligation to post notices of employee rights extends beyond first tier subcontractors. In addition, the DOL notes that while the EO exempts from the notice obligations contracts involving purchases below the simplified acquisition threshold ($100,000), it does not exempt subcontracts involving purchases below this threshold. In the definitions section of the proposed rule, however, the DOL defines “subcontract” as only those subcontracts that are necessary to the performance of the government contract. Thus, the proposed rule notes, “[a]lthough this rule may result in coverage of subcontractors with relatively de minimis value in the overall scheme of government contracts, covered subcontractors include only those who are performing subcontracts that are necessary to the performance of the prime contract.” The DOL seeks comment on whether and in what form further limitations for subcontractor coverage are needed.

As for the physical posting of the notice, the DOL states that if a contractor customarily posts notices to employees electronically, it must do the same for the new employee rights notice. The DOL has proposed that a contractor may satisfy this obligation by posting the notice to its internal or external website, which must also prominently display a link to the DOL’s website containing the full text of the employee notice. The content of the notice must also link to the DOL’s web page. The DOL invites comment on whether it should prescribe standards regarding the size, clarity, location, and brightness of this link.

The second part of the proposed rule outlines the standards and procedures related to complaints, compliance evaluations and enforcement. Penalties for violations include contract cancellation, termination or suspension. In addition, the Labor Secretary may issue an order debarring the contractor “until such contractor has satisfied the Secretary that such contractor has complied with and will carry out the provisions of the order.” Written complaints can be sent to either the Office of Federal Contract Compliance (OFCCP) or the Office of Labor Management Standards (OLMS). The OFCCP would have investigative authority.

All comments on this proposed rule must contain the identification number: 1215-AB70, and be received by September 2, 2009. Written comments may be sent to Denise M. Boucher, Director of the Office of Policy, Reports and Disclosure, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N–5609, Washington, DC 20210. Comments may also be sent electronically through the Federal eRulemaking Portal at http://www.regulations.gov.