Update on Fair Pay and Safe Workplace Regulations Implementation
September 21, 2016
Since the initial FS Client Alert on the final Federal Acquisition Regulation (FAR) rule and the Department of Labor (DOL) guidance implementing the Executive Order on Fair Pay and Safe Workplaces (final rule), FS attorneys have learned some important information on how the final rule will be implemented.
Current implementation of the final rule is being phased in starting on October 25, 2016. At that point, the actual or prospective contractors or subcontractors (herein “Contractor”) proposing on new procurements of $50 million or more are required to make disclosures regarding fourteen identified Federal labor and employment laws, and state approved occupational safety and health plans. The Agency Labor Compliance Advisor (ALCA) receiving the disclosures is required to place this disclosure information into an “assessment case file” that will reside in the ALCA Hub being established. It is currently anticipated that the Contracting Officer (CO) will only be provided access to the ALCA’s recommendation and identified basis for that recommendation. The CO will not have access to the underlying disclosure information in the ALCA Hub.
- The CO involved in the particular procurement will assess the ALCA recommendation to determine whether action is appropriate and, if so, what that action will be. While the disclosures will be publicly available, the Contractor may request protection from public disclosure of its explanatory or mitigating information. There is reason to believe that the underlying ALCA assessment made during a procurement may be considered predicational and exempt from public disclosure.
Starting on September 12, 2016, a Contractor can request a reassessment of its violations. The Contractor seeking the reassessment will disclose its violations and may also provide explanatory or mitigating information. The Contractor may request protection from public disclosure of its explanatory or mitigating information. However, what is not clear is whether the information submitted to DOL as part of the reassessment process can be accessed and used by enforcement agencies and ALCAs outside of the reassessment process.
- In contrast to where disclosures are made and assessment decisions are rendered by the CO during the procurement, the reassessment decision will be made by DOL, or the enforcement agency. There is concern that the written decision may not be protected from public disclosure as it is not part of a predicational deliberative process in a specific procurement.
Although the prime contractor can rely on a subcontractor’s representations regarding its Labor Law violations in making its responsibility determination, the Government is encouraging the prime to refer the subcontractor to the appropriate enforcement agency if the prime believes there is a responsibility problem.
The DoD has appointed its own ALCA. That ALCA is appointing ALCA representatives for each DoD procurement activity. The ALCA representative will be responsible for collecting the disclosure information from Contractors, for entering it into the ALCA Hub and for using DOL guidance to perform the initial assessment of whether to recommend one of following possible dispositions:
- No issue-Contractor has a satisfactory record of responsibility.
- Issue-Action is required before proceeding with an award decision.
- Issue-Contractor must commit to negotiation of LCA before the CO can proceed with an award.
- Issue-Contractor must complete the LCA as a condition of an award.
Where the ALCA representative finds an issue, the matter is referred to the ALCA with the ALCA representative’s recommendations. The ALCA will review and forward his recommendation to the CO for final review and decision. Where the CO decides to dispose of the matter per item 4, the matter must be referred to the responsible agency Suspension Debarment Official for further consideration.
For Paycheck Transparency, Contractor systems will likely require updating to enable them to report on the required information.
A formal request to delay implementation of the final rule has been submitted to the Office of Federal Procurement Policy by the Council of Defense and Space Industry Associations (CODSIA) because of the limited time available to collect information and get systems in place that can comply with the requirements. [link to letter] Other questions about possible postponement of all or a portion of the rule have also been raised.
DOL has established a portal for contractors to submit questions on FPSW implementation and it is working with the Defense Acquisition University to prepare web-based training for Federal officials on implementation of the FPSW.
The final rule is a convergence of Federal labor and employment laws and guidance and Federal government contracting rules. Understanding how these laws and regulations intersect and apply may not be crystal clear. If you have specific questions about whether you are covered by the new rule and its implementation requirements, contact your FortneyScott attorney.
State of Civil Rights Under Trump 2.0
The regulatory landscape continues to shift – both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) have announced regulatory changes relating to independent contractors and joint employment. Overview DOL has proposed largely returning to the independent contractor rule issued in the first Trump Administration that includes a streamlined five factor economic‑reality test. The NLRB has proposed reinstating the 2020 joint employer regulation. Both of these proposed regulatory changes are positive developments for employers and, if finalized, will provide greater clarity and certainty for employer compliance. More Detailed Information DOL Rulemaking : The DOL issued a significant proposed rule to determine employee versus independent contractor status under the Fair Labor Standards Act (FLSA). DOL’s proposed rule will reinstate, with modifications, the streamlined economic‑reality test adopted during the first Trump Administration in the January 7, 2021 final rule. Under the 2021 rule, the DOL applied a streamlined economic‑reality test that focused on whether a worker is economically dependent on the employer or is operating an independent business. The 2021 rule identifies five factors to apply with the first two factors carrying more weight : (1) the nature and degree of control over the work; (2) the worker’s opportunity for profit or loss; (3) skill required for the work; (4) permanence of the working relationship; and (5) whether the work is part of an integrated unit of production. The DOL’s modifications to the 2021 standard seek to clarify whether a worker depends on the company to provide work, as opposed to depending on their own business to generate work opportunities. The analysis focuses on the source of work, not the percentage of income the worker earns from a particular company. The DOL also proposes to extend this updated analysis to the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), both of which rely on the FLSA’s definition of “employment.” Key Takeaways for DOL IC Rule: The DOL’s 2024 rule, which established a six-factor test that created significant uncertainties when applied, will be rescinded. The DOL proposes returning to the 2021 rule’s five-factor test, with certain updates. The same analysis would apply under the FMLA and MSPA, aligning worker classification standards across these laws to reduce compliance and enforcement risks. The proposed changes support employer interests and will enable employers to assess independent contractor relationships and mitigate compliance and enforcement risks. If finalized, this rule should have wide-reaching implications for employers, contractors, gig economy platforms, and industries that rely on flexible labor models. NLRB Withdraws and Replaces its Joint Employer Regulation: The National Labor Relations Board will issue a final rule withdrawing its 2023 Joint Employer Rule in the Federal Register on Friday, February 27, 2026. This is following a March 8, 2024 decision by the U.S. District Court for the Eastern District of Texas. Chamber of Commerce v. NLRB , 723 F.Supp. 3d 498, 519 (E.D. Tex. 2024) vacated the 2023 Rule before it took effect. As a result, the Board is reinstating the prior 2020 Joint Employer Status Under the National Labor Relations Act, codified at 29 C.F.R. § 103.40, as the governing standard for determining joint‑employer status under the National Labor Relations Act. We will continue to monitor these rulemakings closely. Please reach out to FortneyScott, if you would like to submit comments to the agencies or conduct a proactive assessment of the existing independent contractor or joint employerrelationships.
A Perspective on Trends from the DOL and on a State Government Level
Having been fully funded for FY2026 and with new leadership in place, employers can expect much more from the Department of Labor in the second year of Trump 2.0. Join FortneyScott attorneys on Tuesday, March 3, 2026 at noon EDT to learn DOL’s priorities for 2026 and how to ensure compliance. Key Topics to be Covered Include: Overview of DOL Trump 2.0 officials Budget for FY2026 Next Steps from Wage & Hour Status of regulations PAID Program Return of Opinion Letters Child Labor enforcement FY2025 recovery Project Firewall Joint project with DOJ, EEOC and USCIS over H-1Bs Future of OFCCP – What to expect from the agency now that it has been funded Key Takeaways to ensure compliance This webinar is the second in a three-part series designed for compliance professions, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance. To register for FortneyScott’s Workplace Legal Compliance training series, please click here .
Fortney Scott Attorney David Fortney Co-Chairs and Speaks at the Practicing Law Institute's Annual Wage & Hour Litigation and Compliance for 2026
DEI continues to be a high priority issue for the Trump Administration. Recent actions by multiple federal agencies, signal increased scrutiny of employer DEI programs. In the past week alone, the Administration has taken several significant actions: The EEOC filed a subpoena enforcement action against Nike based on a May 2024 Commissioner’s charge filed by EEOC Chair Andrea Lucas. The subpoena seeks company-wide information dating back to 2018, reflecting a more expansive approach to DEI-related investigation and increased willingness to pursue enforcement in federal court. The Chair of the Federal Trade Commission issued letters to 42 leading law firms warning that participation in the Mansfield Certification program may raise antitrust concerns. EEOC Chair Lucas was copied on the correspondence, highlighting coordinated federal agency attention to diversity-based initiatives. President Trump made additional demands on Harvard concerning its DEI-practices, substantially increasing the monetary demands from $200 million to $1 billion, while signaling the possibility of additional legal action, including potential criminal exposure. Federal funding was suspended for one of the largest infrastructure projects in the U.S., the $16 Billion Hudson Tunnel project, based on minority set aside contracting requirements, prompting litigation. This action, which impacts train services between New York City and New Jersey, underscores the intersection of DEI initiatives and federal funding risks. What should employers do now? In the current enforcement environment, employers should: Continue to assess DEI programs for legal risk. With a full EEOC quorum now in place, increased scrutiny of corporate DEI programs is likely. Although most employers have reviewed their DEI programs and made necessary changes to address legal compliance, the renewed focus on DEI requires ongoing assessment and update of DEI programs. Ensuring that these best practices remain in place and are followed is crucial. Prepare for the possibility of broader EEOC investigations. Recent enforcement activity reflects an increased willingness by the EEOC to pursue company-wide inquiries, often supported by expedited subpoena enforcement in matters that originate as individual discrimination charges filed by white employees and applicants. Evaluate participation in diversity rankings and certifications. Employers should evaluate whether participation in voluntary diversity assessments, ranking programs or other public reporting of diversity results unnecessarily raises the organization's profile and invites heightened scrutiny from the EEOC and other enforcement agencies. Please contact your FortneyScott attorney or email us at info@fortneyscott.com for additional information on how to be prepared and other best practices recommendations.
State of Civil Rights Under Trump 2.0
The regulatory landscape continues to shift – both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) have announced regulatory changes relating to independent contractors and joint employment. Overview DOL has proposed largely returning to the independent contractor rule issued in the first Trump Administration that includes a streamlined five factor economic‑reality test. The NLRB has proposed reinstating the 2020 joint employer regulation. Both of these proposed regulatory changes are positive developments for employers and, if finalized, will provide greater clarity and certainty for employer compliance. More Detailed Information DOL Rulemaking : The DOL issued a significant proposed rule to determine employee versus independent contractor status under the Fair Labor Standards Act (FLSA). DOL’s proposed rule will reinstate, with modifications, the streamlined economic‑reality test adopted during the first Trump Administration in the January 7, 2021 final rule. Under the 2021 rule, the DOL applied a streamlined economic‑reality test that focused on whether a worker is economically dependent on the employer or is operating an independent business. The 2021 rule identifies five factors to apply with the first two factors carrying more weight : (1) the nature and degree of control over the work; (2) the worker’s opportunity for profit or loss; (3) skill required for the work; (4) permanence of the working relationship; and (5) whether the work is part of an integrated unit of production. The DOL’s modifications to the 2021 standard seek to clarify whether a worker depends on the company to provide work, as opposed to depending on their own business to generate work opportunities. The analysis focuses on the source of work, not the percentage of income the worker earns from a particular company. The DOL also proposes to extend this updated analysis to the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), both of which rely on the FLSA’s definition of “employment.” Key Takeaways for DOL IC Rule: The DOL’s 2024 rule, which established a six-factor test that created significant uncertainties when applied, will be rescinded. The DOL proposes returning to the 2021 rule’s five-factor test, with certain updates. The same analysis would apply under the FMLA and MSPA, aligning worker classification standards across these laws to reduce compliance and enforcement risks. The proposed changes support employer interests and will enable employers to assess independent contractor relationships and mitigate compliance and enforcement risks. If finalized, this rule should have wide-reaching implications for employers, contractors, gig economy platforms, and industries that rely on flexible labor models. NLRB Withdraws and Replaces its Joint Employer Regulation: The National Labor Relations Board will issue a final rule withdrawing its 2023 Joint Employer Rule in the Federal Register on Friday, February 27, 2026. This is following a March 8, 2024 decision by the U.S. District Court for the Eastern District of Texas. Chamber of Commerce v. NLRB , 723 F.Supp. 3d 498, 519 (E.D. Tex. 2024) vacated the 2023 Rule before it took effect. As a result, the Board is reinstating the prior 2020 Joint Employer Status Under the National Labor Relations Act, codified at 29 C.F.R. § 103.40, as the governing standard for determining joint‑employer status under the National Labor Relations Act. We will continue to monitor these rulemakings closely. Please reach out to FortneyScott, if you would like to submit comments to the agencies or conduct a proactive assessment of the existing independent contractor or joint employerrelationships.
A Perspective on Trends from the DOL and on a State Government Level
Having been fully funded for FY2026 and with new leadership in place, employers can expect much more from the Department of Labor in the second year of Trump 2.0. Join FortneyScott attorneys on Tuesday, March 3, 2026 at noon EDT to learn DOL’s priorities for 2026 and how to ensure compliance. Key Topics to be Covered Include: Overview of DOL Trump 2.0 officials Budget for FY2026 Next Steps from Wage & Hour Status of regulations PAID Program Return of Opinion Letters Child Labor enforcement FY2025 recovery Project Firewall Joint project with DOJ, EEOC and USCIS over H-1Bs Future of OFCCP – What to expect from the agency now that it has been funded Key Takeaways to ensure compliance This webinar is the second in a three-part series designed for compliance professions, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance. To register for FortneyScott’s Workplace Legal Compliance training series, please click here .
Fortney Scott Attorney David Fortney Co-Chairs and Speaks at the Practicing Law Institute's Annual Wage & Hour Litigation and Compliance for 2026
DEI continues to be a high priority issue for the Trump Administration. Recent actions by multiple federal agencies, signal increased scrutiny of employer DEI programs. In the past week alone, the Administration has taken several significant actions: The EEOC filed a subpoena enforcement action against Nike based on a May 2024 Commissioner’s charge filed by EEOC Chair Andrea Lucas. The subpoena seeks company-wide information dating back to 2018, reflecting a more expansive approach to DEI-related investigation and increased willingness to pursue enforcement in federal court. The Chair of the Federal Trade Commission issued letters to 42 leading law firms warning that participation in the Mansfield Certification program may raise antitrust concerns. EEOC Chair Lucas was copied on the correspondence, highlighting coordinated federal agency attention to diversity-based initiatives. President Trump made additional demands on Harvard concerning its DEI-practices, substantially increasing the monetary demands from $200 million to $1 billion, while signaling the possibility of additional legal action, including potential criminal exposure. Federal funding was suspended for one of the largest infrastructure projects in the U.S., the $16 Billion Hudson Tunnel project, based on minority set aside contracting requirements, prompting litigation. This action, which impacts train services between New York City and New Jersey, underscores the intersection of DEI initiatives and federal funding risks. What should employers do now? In the current enforcement environment, employers should: Continue to assess DEI programs for legal risk. With a full EEOC quorum now in place, increased scrutiny of corporate DEI programs is likely. Although most employers have reviewed their DEI programs and made necessary changes to address legal compliance, the renewed focus on DEI requires ongoing assessment and update of DEI programs. Ensuring that these best practices remain in place and are followed is crucial. Prepare for the possibility of broader EEOC investigations. Recent enforcement activity reflects an increased willingness by the EEOC to pursue company-wide inquiries, often supported by expedited subpoena enforcement in matters that originate as individual discrimination charges filed by white employees and applicants. Evaluate participation in diversity rankings and certifications. Employers should evaluate whether participation in voluntary diversity assessments, ranking programs or other public reporting of diversity results unnecessarily raises the organization's profile and invites heightened scrutiny from the EEOC and other enforcement agencies. Please contact your FortneyScott attorney or email us at info@fortneyscott.com for additional information on how to be prepared and other best practices recommendations.
As we move further into 2026, employers should review notable changes to DC employment laws that may impact workplace policies and compliance obligations. Minimum and Living Wage Rates : From January 1, 2026, through June 30, 2026, any DC contract or government assistance recipient receiving $100,000 or more, as well as their subcontractors receiving at least $15,000 for contracts or $50,000 for government assistance, must pay at least the living wage rate of $17.95 per hour. Starting July 1, 2026, both the minimum wage rate and the living wage rate will increase to $18.40 per hour. For tipped employees, the base minimum wage increases to $10.30 per hour on July 1, 2026. Non-Compete Restrictions : Starting January 1, 2026, employers are banned from entering non-compete agreements with employees earning less than $162,164, and with medical specialists earning less than $270,274 Pay Stub Transparency : Starting January 1, 2026, employers must itemize all sources of compensation on employees’ pay stubs, including wages, bonuses, commissions, tips, service charges, etc.
In the second year of Trump 2.0, employers must stay alert to EEOC’s shifting priorities. Join FortneyScott attorneys on Tuesday, February 3, 2026 at noon EDT to learn what to expect from EEOC and the key steps employers must take now to ensure compliance with the new EEOC priorities. Key Topics to be Covered Include: New Commission quorum , and how it will impact EEOC priorities; Current EEOC priorities , including eliminating unlawful DEI, protecting religious liberties, limiting sex discrimination to biological sex and focusing on anti-American discrimination; Notable EEOC enforcement actions , updates, and emerging trends in the Administration’s civil rights enforcement; and, Actionable strategies and key takeaways to ensure compliance with Title VII, the PWFA, etc. This webinar is the first in a three-part series designed for compliance professionals, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance.
In the second year of Trump 2.0, employers must stay alert to EEOC’s shifting priorities. Join FortneyScott attorneys on Tuesday, February 3, 2026 at noon EDT to learn what to expect from EEOC and the key steps employers must take now to ensure compliance with the new EEOC priorities. Key Topics to be Covered Include: New Commission quorum , and how it will impact EEOC priorities; Current EEOC priorities , including eliminating unlawful DEI, protecting religious liberties, limiting sex discrimination to biological sex and focusing on anti-American discrimination; Notable EEOC enforcement actions, updates, and emerging trends in the Administration’s civil rights enforcement; and, Actionable strategies and key takeaway s to ensure compliance with Title VII, the PWFA, etc. This webinar is the first in a three-part series designed for compliance professionals, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance. To register for FortneyScott’s Workplace Legal Compliance training series, please click here .
As employers prepare to face the second year of Trump 2.0, FortneyScott is convening a three-month, complimentary training initiative to help clients stay ahead of the curve and confidently navigate the shifting terrain. From February through April of 2026, our Workplace Legal Compliance Series will deliver timely, practical insights through: Monthly Webinars featuring FortneyScott attorneys unpacking the latest developments. DC Insider—Employer Update Podcasts offering candid analysis from Washington insiders. Real-Time Alerts on breaking regulatory changes impacting your business. This exclusive program is tailored to equip employers with the tools they need to strengthen their compliance strategies, mitigate risk, and adapt to the new enforcement priorities taking shape in 2026. Whether you're a federal contractor, a multi-state employer, or simply seeking clarity in a volatile legal environment, FortneyScott’s training series is your go-to resource for substantive updates and actionable guidance . How to Participate : Register now for the FortneyScott Workplace Legal Compliance webinars, podcast notifications and alerts: Register here for all 3 webinars (February 3, March 3 and April 9). Sign Up for notifications of new podcast episodes of DC Insider—Employer Update. Sign Up here to receive Workplace Legal Compliance alerts and updates. If you have an immediate questions or feedback, please contact any of the FortneyScott attorneys or email info@fortneyscott.com .
