Welcome to the Employment Law section of our webpage. Employment law issues are complex, often subject to state and local law (not ordinarily covered on CLIC pages) as well as federal law. This front page will reflect our most current information on employment law affecting educational institutions.
Fair Pay and Safe Workplaces Executive Order 13763 (July 31, 2014)
The Order will require prospective federal contractors to disclose their violations of certain workplace protection laws before receiving a contract award.
Federal Acquisition Regulation; Fair Pay and Safe Workplaces; Final Rule published at 81 Fed. Reg. 58562, August 25, 2016 by NASA, GSA and the Department of Defense. **
This rule which is designed to increase efficiency and cost savings in Federal contracting by improving
contractor compliance with labor laws. The Department of Labor is simultaneously issuing final Guidance to assist Federal agencies in implementation of the Executive Order in conjunction with the FAR final
rule. The regulations will apply to new contracts and subcontracts for goods and services, including construction, where the estimated value exceeds $500,000 over the life of the contract.
Disclosure of Labor Law Violations
Beginning October 25, 2016, federal contracts of $50 million or more will require prime contractors to disclose violations of 14 federal laws for the previous year. Also, contractors and subcontractors with federal contracts of at least $1 million are prohibited from forcing employees to sign pre-dispute agreements to arbitrate sexual assault or civil rights claims.
On April 24, 2017, federal contractors must disclose violations of 14 federal laws from the previous year whenever they seek a federal contract of $500,000 or more.
On October 25, 2017, subcontractors must disclose violations of 14 federal laws from the previous year whenever they seek a federal contract of $500,000 or more.
On October 25, 2018, all federal contractors and subcontractors must begin disclosing violations of 14 federal laws for the previous three years.
Federal workplace laws covered by rule:
- Fair Labor Standards Act
- Occupational Safety and Health Act (and state law equivalents)
- Migrant and Seasonal Agricultural Worker Protection Act
- National Labor Relations Act
- Family and Medical Leave Act
- Davis-Bacon Act
- Service Contract Act
- Title VII of the Civil Rights Act
- Americans with Disabilities Act
- Age Discrimination in Employment Act
- Executive Order 11246 (affirmative action and equal employment opportunity)
- Vietnam Era Veterans’ Readjustment Assistance Act
- Section 503 of the Rehabilitation Act
- Executive Order 13658 (federal contractor minimum wage)
Note that the state law equivalents will also require disclosures subject to future rulemaking.
Paycheck Transparency Provisions
The final FAR rule implementing the paycheck transparency provisions specifies that contracting officers will be required to insert the paycheck transparency contract clause into covered contracts beginning on January 1, 2017. FAR 22.2007(d). This section requires covered contractors and subcontractors to provide all individuals performing work under the contract for whom the contractor maintains wage records under the FLSA, the DBA, the SCA or equivalent state laws with a document each pay period containing information concerning that individual's hours worked, overtime hours, pay and any additions made to or deductions from pay. The final FAR rule provides that contractors have the option of providing wage statements either by paper-format (e.g., paystubs), or electronically if the contractor regularly provides documents electronically and if the worker can access the document through a computer, device, system, or network provided or made available by the contractor.
See 48 CFR 52.222-60 for details on what needs to be included by January 1, 2017.
Prohibition on Mandatory Pre-Dispute Arbitration Clauses
For contracts exceeding $1 million the contractor must agree not to require arbitration for Title VII or any sexual assault or harassment complaint in advance of the complaint. Only voluntary consent of an employee after the dispute arises will suffice. Effective Oct. 25, 2016.
Final Guidance published by the Department of Labor on Executive Order 13673, 81 Fed. Reg. 58653, August 25, 2016, Effective October 25, 2016.
Note pre-assessment begins Sept.12, 2016 for contractors who wish to ask for a voluntary assessment of labor compliance. Note guidance under section V for subcontractor responsibility.
Resources on New Guidance and Regulations
Note Murphy's comment on the expansive definition of labor law violations:
Unfortunately for government contractors, the DOL and the FAR Council appear to have ignored the avalanche of regulatory comments from employers and industry groups calling for limits on the use of “administrative merits determinations” in responsibility determinations. The White House does not identify any change in the approach to this concept or to the low and elastic thresholds for “serious, willful, repeated, and pervasive” violations. Consequently, federal contractors can expect contracting officers to treat unilateral, non-adjudicated enforcement decisions by agency staff as predicate violations that could limit access to federal contracts. Regrettably, the National Labor Relations Board, the Equal Employment Opportunity Commission (EEOC), and the DOL will be positioned to pressure contractors into agreeing to concessions and settlements as the price of access to federal contracting opportunities.
See page 58668 of the DOL guidance, for example:
The Department retains reasonable cause letters as a type of administrative merits determination. An EEOC reasonable cause determination reflects an assessment of a charge's merits: ``that there is reasonable cause to believe that the charge is true.
Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW,Case 02-RC-143012, August 23, 2016 NLRB
In this case the NLRB decided students who perform services at a University in connection with their studies are statutory employees within the meaning of 2(3) of the National Labor Relations Act. In so holding the Board overruled the earlier decision by the Board in Brown University, 342 NLRB 483 (2004), where the Board found that graduate student assistants were not employees.
The holding states:
The Board has the statutory authority to treat student assistants as statutory employees, where they perform work, at the direction of the university, for which they are compensated. Statutory coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the Act does not reach.***
Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act. We will apply that standard to student assistants, including assistants engaged in research funded by external grants. Applying the new standard to the facts here, consistent with the Board’s established approach in representation cases, we conclude (1) that all of the petitioned-for studentassistant classifications consist of statutory employees; (2) that the petitioned-for bargaining unit (comprising graduate students, terminal Master’s degree students, and undergraduate students) is an appropriate unit; and (3) that none of the petitioned-for classifications consists of temporary employees who may not be included in the unit. Accordingly, we reverse the decision of the Regional Director and remand the proceedings to the Regional Director for further appropriate action.
The Board discarded the finding in Brown, supra, that in order to find an employment relationship, the relationship must be primarily economic in character, arguing that the intent of the NLRA was to maximize collective bargaining opportunities for other than the narrow categories specifically excluded (e.g., agricultural workers and those involved in family enterprises). The Board held it would define mandatory subjects of collective bargaining for student assistants on a case by case basis. The dissent argued much of what had been the prior majority opinion, including the impracticality of strikes (you shut off the access to the education you are there to receive) and that NLRB involvement is not warranted simply because "students may occupy a variety of academic positions in conjunction with their education."
See NLRB: Graduate Students at Private Universities May Unionize, August 24, 2015 Inside Higher Ed
Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, Final Rule, 80 Fed. Reg. 32391, May 23, 2016.
This rule is effective Dec. 1, 2016. Under this final rule, white collar employees subject to the salary level test earning less than $913 per week (or $ 47,476 per year for a full time worker) will not qualify for the EAP exemption, and therefore will be eligible for overtime, irrespective of their job duties and responsibilities. Employees earning this amount or more on a salary or fee basis will qualify for exemption only if they meet the standard duties test, which is unchanged by the final rule. See the summary on the DOL web page for more. The DOL web page also includes Guidance for Higher Education Institutions on Paying Overtime under the New Rule.
Hogan Lovells LimeGreen Employment: Web site with some of the key legal issues arising from employment relationships and how they differ from country to country.