Pursuant to Executive Order 13496 and its implementing regulations, 29 C.F.R. Part 471, Federal contractors and subcontractors, beginning on June 21, 2010, must notify employees about their rights under the National Labor Relations Act (NLRA). The NLRA is the primary law governing relations between unions and employers in the private sector, and guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. Additionally, Federal contracts and subcontracts must include a provision requiring Federal contractors and subcontractors to post the notice.

If you have a contract with the federal government in excess of $100,000 issued after June 1, 2010, you must provide notice to employees. If you have any subcontractors providing products or services related to the prime contract in excess of $10,000, you must also notify the subcontractor of their obligations as well.

Posting requirements do not apply to the following:

• prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000.
• subcontracts below $10,000.
• contracts and subcontracts for work performed exclusively

outside the territorial United States.

Other exceptions and exemptions may apply. See 29 C.F.R. 471.3 for more details.

Basic posting requirements include: ? contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees.? ? In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted.? ? Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically. ? Electronic posting requires contractors and subcontractors to post a link to OLMS’s website containing the employee notice where they customarily place other electronic notices to employees about their jobs. ? The link must be no less prominent than other employee notices. ? Electronic posting cannot be used as a substitute for physical posting. ? Where a significant portion of contractor’s workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees.? ? OLMS will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.?

Sanctions and penalties for noncompliance can include: ? suspension or cancellation of the contract 29 C.F.R. 471.14 ? debarment from holding federal contracts 29 C.F.R. 471.14

You may be asking if you are required to post this notice because you are a “non-union employer” or a subcontractor that does not currently deal with unions. This simple answer is YES – you still have to post and give notice.?? Employers that do not presently deal with unions as representatives of employees, or maintain a policy of not wanting to deal with unions as representative of employees, must nevertheless comply with the regulations if they are a federal contractor or subcontractor.

Many banks are asking if they are considered federal contractors for the purpose of this requirement since they are depository of federal funds and do not have a specific beginning and ending date of a contract. Banks are covered by the regulations for at least two reasons. First, deposit insurance is a covered contract. Second, an entity is covered if it is an issuing and paying agent for US savings bonds and notes, or is a federal fund depository.

For those of you in the medical arena, you may be wondering if this requirement applies to Medicare/Medicaid support or involvement.

? Reimbursements made pursuant to Medicare Parts A and B, and Medicaid are Federal financial assistance, not contracts.? ? Medicare Parts C & D, TRICARE, and FEHPB may be federal contracts depending on the circumstances.

The rule excludes “federal financial assistance” from the definition of “government contract.” “Federal financial assistance” generally means grants or loans of federal funds. If the project is preformed based on “federal financial assistance” rather than a government contract or subcontract, then the rule does not apply.

Remember, the regulation applies to contracts resulting from solicitations issued after the effective date of the final rule, which is June 21, 2010. The Federal Acquisition Regulation Council is working on an amendment to the Federal Acquisition Regulations, and the OFCCP expects that interim final rule to issue shortly. For example, if a solicitation was issued by an agency on June 1, 2010, the resulting contract (even if executed after June 21, 2010) would not be subject to the Order’s requirements. On the other hand, if the solicitation is issued on or after June 21, 2010, any resulting contract is subject to the Order and may be reviewed.

Finally, Executive Order 13201 has been repealed, thus these posting no longer are required.

A free copy of the poster as well as sub-contractor language can be found at: http://www.dol.gov/olms/regs/compliance/EO13496.htm

Should you need assistance dealing with your federal contractor status or resulting obligations please contact Carleen Nelson-Nesvig, SPHR or Marlo McCutcheon, SPHR.

This e-newsletter does not represent itself in any manner as offering legal assistance to readers.

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