Learning from the Legacy, Focused on the Future
2014 ILG Annual Conference:
Beyond the AAP
August 6, 2014
Connie N. Bertram
Proskauer Rose LLP
cbertram@proskauer.com
Katharine Parker
Proskauer Rose LLP
kparker@proskauer.com
Topics for Discussion
 Whistleblower protections for contractor
employees
 Drug-free workplace obligations
 Restrictions on arbitration agreements and
programs
 New FAR provision concerning Human
Trafficking
 Wage and hour developments
 Enforcement of restrictive covenants
 Defending litigation claims by contractor
employees
Whistleblower Protections for
Contractor Employees
Renewed Focus on Whistleblower
Claims
 New amendments and legislation
 Recent developments may make dismissal and
summary judgment less likely
 Pleading standards
 Expansion of definition of protected activity
 Nexus to scope of statute
 Believed to have more “traction” with juries
 Awards generally higher than EEO discrimination and
state law claims
 Generally provide for reinstatement, “make-whole”
remedies, punitive and/or liquidated damages, and
attorneys’ fees
 Alternative claims/remedies and forums available,
including bounty claims
Three Prongs of FCA Enforcement
“Qui Tam” Cases Under the FCA
 The False Claims Act (FCA) imposes liability for
treble damages plus penalties for knowingly
submitting or causing the submission of false
claims to the U.S. Government
 A “qui tam” suit is an FCA suit initiated by a
whistleblower or “relator” who sues on behalf
of the United States
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Whistleblower files lawsuit under seal
DOJ investigates and decides whether to intervene
Relator can proceed without DOJ involvement
Relator receives a 15% to 30% share of
government recovery
FCA Also Prohibits Retaliation
Against Employees
 Prima Facie case:
 Protected activity
 Adverse action
 Because of protected activity
 Burden shifts to articulate legitimate, nonretaliatory reasons
 Can overcome by showing pretext and intent to
retaliate
 Business judgment rule a key factor in many
rulings
 Remedies:
 Reinstatement, double back pay, and special
damages including attorneys’ fees
 Compensatory damages in some courts
Developing Issues – Protected
Activity
 Protected activity prior to FERA (2009)
amendments:
 Section 3730(h) protected “acts … in furtherance of” a
qui tam action
 Plaintiff need not prove actual violations of FCA
 Courts required notice of “distinct possibility” of qui
tam litigation (Glynn v. EDO Corp., 710 F.3d 209 (4th
Cir. 2013))
 Protected Activity after amendments:
Section 3730(h) now protects “… lawful
acts … in furtherance of an action … or
other efforts to stop one or more violations”
of the FCA
 Must plaintiff still notify employer of
“distinct possibility” of qui tam suit?
National Defense Authorization Act
 DOD Contractor Protections Prior to NDAA
 Applied to employees of contractors, not
subcontractors
 Regarding DOD contracts only
 Protected external reporting only
 Narrow definition of appropriate DOD official
 New NDAA Protections (effective July 1, 2013)
 Apply to employees of both contractors and
subcontractors
 Regarding contracts with most federal agencies
 Now protects:
 Internal complaints to management official with
responsibility to investigate, discover or address
misconduct
 Protect participation in government investigation
 Provide for reinstatement, back pay, compensatory
damages and attorneys’ fees
National Defense Authorization Act
 Protects disclosure of reasonable belief of:
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Gross mismanagement of federal contract/grant
Gross waste of federal funds
Abuse of authority concerning federal contract/grant
Substantial and specific danger to public health/safety
Violation of law/rule/regulation regarding federal
contract/grant (including the competition for same)
 If disclosed to:
 Congress, IG of agency, GAO, federal employees with
oversight, law enforcement
 Company employee with responsibility to
investigate/address misconduct
 Causation Standard: Contributing factor, not
“but for” or “motivating” factor
NDAA Procedure and Remedies
 Procedure
Three-year statute of limitations
Employee files with OIG
OIG investigates
Agency head issues decision
Employee can file in federal district court if no
decision from OIG in 210 days
 Agency decision subject to review by federal
court of appeals
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 Remedies: Reinstatement, back pay,
compensatory damages, attorneys’ fees and
costs
Industries in the Line of Fire
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DOD and other traditional procurement contractors
GSA schedule sales
Colleges and universities
Health care industry
• Medicare/Medicaid reimbursement
• Research funding
• Sales to VA
• Banking and financial industry
• Retailers with sales to military and BX/PX
• Subcontractors
Develop Effective Internal Policies
 Update anti-retaliation policies and code of conduct
to include additional and expanded claims
 Address additional categories of protected conduct
 Develop effective protocol for handling hotline calls and
complaints
 Confirm that confidentiality agreements, non-disparagement
provisions and settlement agreements do not restrict or
impede reporting
 Conduct frequent and effective management training
 Audit compliance
 Incentivize internal complaints
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Effective and timely reporting mechanism
Culture “driven from the top” that supports reporting
Provide frequent updates to complainants
Develop strong anti-retaliation policies and protections
Conduct Effective Internal
Investigations
 Develop effective procedures for investigating
whistleblower claims
Document and confirm the employee’s complaint
Engage subject matter experts
Break down the silos between HR, legal and compliance
Always consider and investigate self-help discovery,
including a forensic review of computers, devices and
accounts
 Be mindful of mandatory reporting obligations
 Ensure that treatment and results are consistent with
prior situations
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 Ensure objectivity in reviewing and managing
the performance of whistleblowers who are
current employees
Consider Mandatory Disclosure
Obligations Throughout Process
 Two separate considerations:
 Do the allegations of fraud of the whistleblower
trigger the duty to disclose
 Does the whistleblower’s own conduct or
performance trigger the obligations to disclose
 Timing a key consideration
 Rules contemplate a reasonable investigation
prior to disclosure
 Swift disclosure can enhance client relationship
and deflate the impact of the whistleblower’s
own filing or claim
 Consider whether company has
obligation to disclose whistleblower’s
own misconduct
Drug Free Workplace Obligations
DFWA Coverage
 Requires some contractors and all grantees to
provide drug-free workplaces as a condition of
receipt of contract or grant
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Generally applies to contractors if the value of a single contract is
$100,000 or more, other than acquisition of commercial goods
Does not apply to subcontractors or subgrantees
Only applies to performance inside of the United States
 Requirement or indefinite quantity contracts
covered if reasonably expected to exceed
$100,000
 Act requirements only apply to employees
working on the covered grant or contract
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On payroll
Works on any activity under the grant or contract (“direct” or
“indirect” charge)
Temporary employees covered if meet criteria
Developing Issues – Protected
Activity
Type of Contract/Grant
Coverage
Students and recipients of Pell Grants
Yes
Medicare third-party reimbursements to hospitals
No
Hospitals that receive procurement contracts or
grants
Yes
Banks and financial institutions selling US Treasury
Bonds
No
Contractors and grantees performing work in federal Yes
facilities
Employees subject to drug testing requirements for
security clearances
Yes, they co-exist
DFWA Requirements Vary
 Requirements of FAR provisions adopted
by agencies and departments vary
 For example, most do not require affirmative
provision of treatment or rehabilitation services
 Certain NASA contracts require contractors to
establish and maintain an appropriate rehabilitation
program that requires, at minimum, identification
and treatment of employees responsible for safetysensitive, security or National security functions
 Because Act applies on case-by-case
basis, contractors must determine
coverage and obligations imposed by
each contract or grant (or for which they
will be applying)
DFWA Requirements – Policy and
Program
 Publish and provide a policy to all covered
employees that:
 States that the unlawful manufacture, distribution,
dispensation, possession or use of a controlled
substance is prohibited in the workplace and
 Identifies the actions that will be taken against
employee who violate the policy
 Requires establishment of drug-free
awareness program to notify employees of:
 Dangers of drug abuse in the workplace
 Policy of maintaining a drug-free workplace
 Any available drug counseling, rehabilitation and
employee assistance programs
 The penalties that may be imposed on employees
for drug abuse violations
Notification Requirement
 Each employee must be informed in
writing of the policy and his or her
responsibilities
 Although contractors are not required
to provide a notification each time a
contract or grant is received, the
program must be ongoing
 Contractors are not required to obtain
verification of receipt
 Notification cannot be provided
through collective bargaining
representative or other agent
DFWA Requirements – Notification
and Penalty
 Also must notify employees that, as a condition of
their employment on the contract or grant, the
employee must:
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Abide by the terms of the policy statement; and
Notify the employer, within five calendar days, if he or she is
convicted of a criminal drug violation in the workplace
 Notify the contracting or granting agency within 10
days after receiving notice that a covered employee
has been convicted of a criminal drug violation in the
workplace
 Impose a penalty on or requirement satisfactory
participation in a drug abuse assistance or
rehabilitation program by any employee who is
convicted of reportable workplace drug conviction
 Make an ongoing, good faith effort to maintain a
drug-free workplace
What the DFWA Does NOT Require
 Program not required to address
alcohol and nonprescription drug
abuse in programs
 Does not require establishment of an
EAP or special training for supervisors
 Drug testing is not authorized or
required
DFWA Enforcement
 Compliance reviewed as part of the normal
Federal contract and grant administration and
auditing process
 Federal agency head determines whether
violation occurred
 If determines that cause exists, action initiated
and conducted in accordance with applicable
FAR regulation and agency procedures
 Contractors and grantees that violate the Act
can receive one or more of the following
penalties:
 Payments suspended
 Contract or grant suspended
 Barred from receiving additional contracts or
grants for up to five years
Restrictions on Arbitration
Agreements and Programs
General Rules Regarding
Mandatory Arbitration Agreements
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Federal Arbitration Act – arbitration encouraged
Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010) –
an arbitration agreement that is silent regarding arbitrability of class
actions implies class claims cannot be arbitrated
AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) – FAA preempts
CA court decisions refusing to enforce class action waivers on grounds
of unconscionability
 Iskanian v. CLS Transp. Los Angeles, LLC, Case No. S204032
(6/26/14), upholding class action waivers in employment
arbitration agreements
CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012) – FAA
requires courts to enforce arbitration agreements according to their
terms even where underlying statute states that a plaintiff has the
“right to sue”
American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013)
– Arbitration agreements must be enforced as written; unavailability of
class action procedure is not a barrier to enforcement of otherwise
valid arbitration agreement; rejects “vindication of statutory rights”
theory
Class Arbitration and Class Action
Waivers
Summary from the Supreme Court
 Class arbitration is not consistent with the
underlying premises of the FAA
 Class action waivers are generally consistent
with the underlying premises of the FAA
 Class action waivers may be invalidated through
normally applicable contractual defenses (failure
to agree, outside the scope, fraud) and state
unconscionability standards so long as the
standards are uniformly applicable, neutral in
effect and consistent with federal arbitration
policy
 The same principles apply to federal statutory
claims
 None of this matters if an arbitrator has ruled
that class actions were agreed upon, so long as
there is some evidence of intent to agree
Class Arbitration and Class Action
Waivers
Do these principles apply to Fair Labor Standards Act
claims?
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Yes: Sutherland v. Ernst & Young LLP, 726 F. 3d 290 (2d Cir.
2013)
 Question was whether Congress decreed that
collective actions are required for FLSA claims
 Plaintiffs claimed Section 216(b) collective actions
are a prescribed statutory procedure and thus
evidence a congressional command not to allow class
action waivers
 Circuit concluded that while Congress authorized
FLSA collective actions, it did not require them and
did not foreclose an individual waiver of them
 Second Circuit applied American Express (Supreme
Court version) and rejected “effective vindication
argument: Raniere v. Citigroup reaches the same
conclusion
 Other circuits have agreed: Richards v Ernst &
Young, 2013 WL 4437601 (9th Cir. 2013)
Class Arbitration and Class Action
Waivers
Do these principles apply to Title VII disparate
treatment claims?
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Second Circuit holds that they do in Parisi v. Goldman, Sachs
& Co. 710 F. 3d 483
District Court (affirming Magistrate Judge Francis) had relied
on effective vindication theory
 Judicial holdings in SDNY find that pattern or practice
claims may not be litigated in individual Title VII
actions
 Assuming an arbitrator would follow these cases,
remitting a potential class plaintiff to individual
arbitration would prevent her from litigating a pattern
or practice claim
 Therefore an arbitration agreement is not
enforceable because its silent clause would bar class
arbitration of a substantive right, the right to bring a
pattern or practice claim
Class Arbitration and Class Action
Waivers
Is a class action waiver lawful under the National
Labor Relations Act?
 In D.R. Horton, Inc., 357 N.L.R.B. No. 184 (2012), the
employer required employees as a condition of employment
to sign a Mutual Arbitration Agreement (“MAA”), which
contained a class and collective action waiver
 The Board found that employees have a § 7 right that forbids
class action waivers, even where employees were not
discharged or disciplined for filing a class action
 Board held that the class action waiver in and of itself limited
employees’ ability to engage in protected concerted activity,
which included the filing of class or collective actions
 But Fifth Circuit overruled in December 2013 holding that FAA
required arbitration agreements to be enforced according to
their terms
 But – NLRB not bound by Fifth Circuit and continues to press its
view (Leslie’s Poolmart and Sprouts Farmers Markets)
Franken Amendment
 Provision of 2010 Department of Defense
Appropriations Act that prohibits:
 The use of appropriated funds for any contract in
excess of $1 million
 If the contractor requires its employees to
arbitrate:
 All claims under Title VII of the Civil Rights Act of 1964
 Tort claims related to or arising out of sexual assault or
harassment including assault and battery, intentional
infliction of emotional distress, false imprisonment, or
negligent hiring, supervision or retention
 In the guidance published with the interim rule,
DoD explained that the Franken Amendment
does not affect the use or enforcement of
mandatory arbitration agreements for noncovered claims
Franken Amendment Coverage
 To be covered by the Amendment, a contractor
must receive funds from the DoD
 In final rule, DoD stated that the term
“contractor” is to be construed narrowly
 Only refers to the specific entity that has the
contract
 Does not encompass a parent or subsidiary
corporation unless that parent or subsidiary is a
party to the contract
 The Amendment also does not apply to
contracts for the acquisition of commercial
items, including commercially available off-theshelf items.
Franken Amendment
Subcontractor Coverage
 A “covered subcontractor” is any entity with
subcontract valued in excess of $1 million, other
than subcontracts for acquisition of commercial
items
 To receive funds from DoD, covered contractor must
certify that it requires each “covered subcontractor”
to agree not to enter into or enforce mandatory
arbitration agreements requiring arbitration of
covered claims by employees or independent
contractors performing work relating to that
subcontract
 Limited to those contracts placed by the contractor or
higher-tier subcontractors specifically for supplies or
services for the performance of the contract
 Does not apply to supplies or services a contractor or
higher-tier subcontractor might purchase for other
purposes
Franken Amendment Exceptions
 There are three other exceptions to these
restrictions on the use of mandatory arbitration.
 They do not apply to agreements that cannot be
enforced in this country
 The Secretary of Defense may waive these
restrictions on a case-by-case basis if the
Secretary or the Deputy Secretary personally
determines that the waiver is necessary to avoid
harm to national security interest of the United
States, and that the term of the contract or
subcontract is no longer than necessary to avoid
such harm
 They do not apply to contracts for the acquisition
of commercial items, including commercially
available off-the-shelf items
Enforcement of Franken
Amendment
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There is very little case law on the applicability of the
Amendment in general or on its ability to preclude arbitration.
In addition, the Amendment has not been used successfully
to avoid arbitration.
In the only federal court decision addressing the Amendment,
the court rejected the plaintiff’s argument that it precluded
arbitration of his hostile work environment, race
discrimination and retaliation claims. See Phifer v. Mich.
Sporting Goods Distribs., Inc., 2010 U.S. Dist. LEXIS 93839
(W.D. Mich. July 28, 2010).
In a state case, a Texas appeals court ruled that employee’s
personal injury claims, arising out of negligent hiring,
supervision or retention were not covered by the amendment
because they did not arise out of or relate to sexual assault or
harassment. See In re ReadyOne Indus., 2012 Tex. App.
LEXIS 10652 (Dec. 21, 2012).
Breaking News: July 31, 2014
Executive Order Fair Pay and Safe
Workplaces
 New anti-arbitration provision applies to supply and
service contracts and subcontracts > $1 million
 Excludes contracts for COTS
 Prohibits mandatory pre-dispute arbitration
agreements with respect to claims arising under
Title VII of the Civil Rights Act of 1964 or any tort
related to or arising out of sexual assault or
harassment
 Applies to employees and independent contractors
 Doesn’t apply to arbitration provisions in CBAs
 Doesn’t apply to preexisting arbitration agreements
so long as such agreements aren’t subject to change
by the employer or renegotiated
Breaking News: July 31, 2014
Executive Order Fair Pay and Safe
Workplaces
 Contractors must include clause in covered
subcontracts
 Permits voluntary post-dispute agreements to
arbitrate
 DOL estimates 24,000 businesses employing about
28 million workers impacted
 Will be implemented on new contracts in stages, on
a prioritized basis in 2016 following issuance of
implementing regulations by the Federal Acquisition
Regulation (FAR) Council and guidance by the U.S.
Department of Labor (DOL)
 No provision for waiver by agency like for Franken
Amendment
Breaking News: July 31, 2014
Executive Order Fair Pay and Safe
Workplaces
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Anti-arbitration rule is contrary to well-established policy
favoring arbitration
Also inconsistent with employee interests
 Median arbitration awards for all types of employment
claims rose 60% from 2009-2010, from $208,000 to
$241,119. Douglas Ashman, The Impact of Alternative
Dispute Resolution in Employment Law, Purdue Univ. Coll.
Of Tech. Masters Theses, Paper 56, p. 5 (2011)
 In a study of 1,213 AAA cases from 2003-2007, the mean
time for disposition in arbitration was 284.4 days for
cases that settled, and 361.5 days for cases decided after
a hearing, which is substantially shorter than the general
two to two-and-a-half years that it takes to reach trial in
federal and state courts. Alexander Colvin, An Empirical
Study of Employment Arbitration Case Outcomes and
Processes, Cornell Univ. ILR Sch., p. 12 (2011).
Breaking News: July 31, 2014
Executive Order Fair Pay and Safe
Workplaces
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In a study of 1,213 AAA cases from 2003-2007, the mean arbitration
fees were $6,340 per case, $11,070 for cases disposed of by an
award following a hearing, and in 97% of these cases the employer
paid 100% of the arbitration fees beyond a small filing fee, pursuant
to AAA procedures. Alexander Colvin, An Empirical Study of
Employment Arbitration Case Outcomes and Processes, Cornell Univ.
ILR Sch., p. 1, 13-14 (2011).
In a study of 1,213 AAA cases from 2003-2007, 82.5% of claimants
had salaries under $100,000; 13.9% had salaries between $100,001
and $250,000; and 3.7% had salaries over $250,001. Alexander
Colvin, An Empirical Study of Employment Arbitration Case Outcomes
and Processes, Cornell Univ. ILR Sch., p. 1, 15 (2011).
Anecdotal reports from plaintiff attorneys state that potential claim
amounts as much as $60,000 may be necessary to justify bringing a
case forward in litigation. Alexander Colvin, An Empirical Study of
Employment Arbitration Case Outcomes and Processes, Cornell Univ.
ILR Sch., p. 15 (2011).
A 1995 article reported that 83% of works support arbitration over
lawsuits or appealing to a federal agency. Jim Tyson, Workers Spurn
Courts, Favor Arbitration, Christian Science Monitor (June 2, 1995)
(citing “Worker Representation and Participation Survey: Wave Two”).
Compliance with FAR Provision
Regarding Human Trafficking
FAR Subpart 22.17
 The proposed rule prohibits federal contractors,
contractor employees, subcontractors and
subcontractor employees from engaging in any
activities related to human trafficking, such as forced
labor and prostitution
 The following specific activities also prohibited:
 Denying an employee access to his/her identity or
immigration documents
 Using misleading or fraudulent recruitment practices
or charging recruitment fees
 Providing or arranging housing that fails to meet the
host country’s minimum housing and safety standards
 Failing to provide return transportation or requiring
payment for the cost of return transportation for
certain employees
Compliance Plans and
Certifications of Compliance
 For contracts where a portion of the contract is
performed overseas, a compliance plan and
certification of compliance will be required
 Will be required to certify:
 Compliance plan has been implemented
 Neither the contractor, nor any of its agents,
subcontractors or their agents are engaged in
human trafficking activities and
 If abuses have been found, appropriate remedial
and referral actions have been taken
 Will impose strict reporting requirements
 Will be required to flowed down requirements
to subcontractors
Potential Remedies for a Violation
of FAR subpart 22.18
 Potential Remedies:
 Removal of employees involved in the allegations from
the contract
 Suspension of contract payments
 Withholding of award fees
 Refusal to exercise contract options
 Termination of contract or subcontract and/or
 Suspension or debarment
 Must report violations to contracting officer and
agency IG
 In addition, the Government contracting officer must
enter any violations in the Federal Awardee
Performance and Integrity Information System
(FAPIIS)
Wage and Hour Developments:
Minimum Wage Increase for
Contractor Employees
Wage and Hour Obligations of
Contractors Generally
 Recipients of government contracts, grants or
financial aid are subject to additional wage, hour
and benefits standards under:
 The Davis-Bacon Act (DBA), which requires
payment of prevailing wages and benefits to
employees of contractors engaged in federal
government construction projects
 The McNamara-O'Hara Service Contract Act
(SCA), which sets wage rates and other labor
standards for employees of contractors furnishing
services to the federal government
 The Walsh-Healey Public Contracts Act (PCA),
which requires payment of minimum wages and other
labor standards by contractors providing materials and
supplies to the federal government
 The Wage and Hour Division of DOL administers and
enforces these laws
Background of Executive Order
13658
 Signed Executive Order February 12, 2014
 Minimum wage $10.10/hour starting on
January 1, 2015
 Will be increased each year based on the CPI
 Applies to contracts issued for solicitations on
or after January 1, 2015
 Covered contracts must include a clause increasing the
minimum wage
 Contractors must incorporate that clause into lowertier subcontracts
 Proposed Final Rules issued on June 17, 2014
 FAR provision will be issued
Proposed Final Rules – Contracts
Covered
 Will apply to:
 Procurement contracts for construction covered by the
DBA
 Service contracts exceeding $2,500 covered by the
SCA
 Concessions contracts with the federal government,
including contracts excluded from SCA coverage by
regulation
 Contracts to provide services to federal employees,
their dependents or the general public on federal
property or lands
 Excludes the following from coverage: grants,
procurement contracts for construction not subject
to DBA, certain contracts with Indian Tribes, and
service contracts that are exempt from SCA
Proposed Final Rules – Employees
Covered
 Employees entitled to at least the specified minimum
wage for:
 All hours spend working on a covered contract
 All time spent providing support work necessary for
covered contracts
 Employees are entitled to coverage under the EO
even if they are not covered by the DBA or SCA
 Special rules apply to tipped employees
 Must receive a minimum hourly wage of $4.90/hour,
plus the amount earned in tips
 If the combination does not total at least $10.10/hour,
employer must make up the balance
 Each year, the wage will increase 95 cents until the
tipped minimum wage equals 70 percent of the wage
for non-tipped employees
Additional Counseling and
Litigation Issues
Enforcement of Restrictive
Covenants
 Restrictions on use and disclosure of trade secrets
and other confidential information of company and
government customers critical in government
contracting context
 In addition to traditional NDAs, many contractors
use post-employment restrictions, such as noncompetes and non-solicitation provisions
 Contractors efforts to enforce these restrictions have
faced some challenges:
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
Does the contractor have a sufficient ownership interest in the
protected information/data to support the restrictions?
Can employees “prepare to compete” by allowing their resume to
be submitted on a blind basis in connection with a competing
bid?
Does the government’s interests in having experienced workers
on their contracts trump the employer’s interests, particularly
when SCA contracts are involved?
Increasing the Likelihood of
Enforcement
 Consider implications of forum selection and
choice of law provisions
 Narrowly tailor the restrictions to the interests
sought to be protected
 Traditional restrictions:
 Time period
 Geography
 Definition of competitor or competitive activity
 Additional restrictions to consider:
 Identifying specific conduct prohibited (i.e.,
submission of resume)
 Tie to specific contracts and customer contacts
 Tie restrictions to confidential and proprietary
information of the contractor (as opposed to
the customer)
Litigation Procedures and
Defenses that MAY be Available to
Contractors
 Government Contractor Defense – Contractor
followed contract specifications and warned
government
 Defense Base Act – Exclusive remedy for federal
contractor employees who suffer injury oversees
while working on contract
 Derivative Sovereign Immunity – Contractor
had discretion to act in area that required balancing
of federal public policy considerations
 Immunity for Compelled Disclosure –
Contractor required to inform government of
suspected activity or respond to government inquiry
 Government Actor Defense – If government
supervisor made challenged employment action,
contractor employee may be required to pursue EEO
remedies through MSPB procedures
Additional Compliance Obligations
Imposed by July 31, 2014 Executive
Order
General Requirements
 Applies a wide range of new requirements on
federal contractors
 Most provisions apply to contracts over
$500,000
 Will be implemented throughout 2016
 Department of Labor will issue regulations
implementing the Order
Mandatory Disclosure of Violations
 Mandatory disclosure of labor law
violations
 As part of a bid, contractor must disclose
“administrative merits determination,
arbitral award or decision, or civil
judgment” of the following:
 FLSA, OSHA NLRA, Davis-Bacon Act, Service
Contract Act, Section 503 of Rehabilitation
Act, VEVRRA, FMLA, Title VII of Civil Rights
Act, Executive Orders 11246 (equal
employment opportunity) and 13658
(minimum wage) and Migrant and Seasonal
Agricultural Worker Protection Act
 “Equivalent State laws” to the list above
Mandatory Disclosure of Violations
 Agencies will use disclosures to determine
whether contractor acts with integrity and
complies with business ethics to either obtain a
federal contract or to continue operating under
a federal contract
 In addition:
 Must update disclosures every six months
 Must obtain similar disclosures from subcontractors
 Agencies must designate a senior official to
subject the worst violators to penalties,
including disbarment
Pay Disclosure Obligations
 Contractors must provide workers with specific
information on their paycheck, including hours
worked, overtime hours worked, total pay, and
any additions or deductions made to
employees’ pay
 If a contractor is treating a worker as an
independent contractor, the contractor must
inform the individual of their status as an
independent contractor
Learning from the Legacy, Focused on the Future
Proskauer Blog:
Government Contractor Compliance &
Regulatory Update
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Government contractors and subcontractors face unique compliance, employment, and
contractual issues when managing government contracts. Follow the near-daily
developments in the government contract compliance arena, with a particular focus on
updates involving the OFCCP and related agencies and departments. For the latest
insights, check out our blog – Proskauer’s Government Contractor Compliance &
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http://www.governmentcontractorcomplianceupdate.com/