President Trump Rescinds ?Blacklisting? Executive Order and Regulations

On March 27, 2017, the implementing regulations issued pursuant to
President Obama’s Executive Order (EO) 13673, Fair Pay and Safe Workplaces-commonly
referred to as “Blacklisting”-were rescinded by President Trump signing a
Congressional joint resolution of disapproval (H.J. Res. 37) under the
Congressional Review Act (CRA).  In addition, President Trump signed a new Executive Order revoking EO 13673 in its entirety. The new EO directs agencies to “consider
promptly rescinding any orders, rules, regulations, guidance, guidelines, or
policies implementing or enforcing” EO 13673, which would include the U.S.
Department of Labor’s companion guidance to the now-rescinded Blacklisting
regulations.

Trump’s actions are the coup de grace to the embattled Blacklisting
executive order and implementing regulations which, most notably, would have
required contractors and subcontractors to self-disclose a wide range of
alleged violations of labor and employment laws when seeking to do business
with the federal government.  Although a Texas federal court issued a
nationwide injunction last fall staying EO 13673’s requirements for
self-reporting of violations and restricting pre-dispute arbitration
agreements, contractors still were required to comply with the rule’s “paycheck
transparency” provisions that become effective on January 1, 2017.

Importantly, in addition to the rescission of
all the current Blacklisting regulations, the CRA nullification bars agencies in the future from
reissuing rules in “substantially the same form” and promulgating new
rules that are “substantially the same,” absent specific
authorization by a law.

Contact your FortneyScott attorney for
additional information about the impact of these changes on your company’s
federal contracts and related compliance matters.

Acosta Makes An Impressive Showing at Senate Confirmation Hearing

In
a deft and professional performance, Secretary of Labor designee Alex Acosta
indicated that if confirmed, he would give thoughtful review to the various
challenges facing Department of Labor (DOL).
Specifically, Acosta indicated that he was open to examining, the
overtime regulation, Wage and Hour’s view on joint employer, job training, and
a return to DOL opinion letters.

Acosta
faced questions from both sides of the aisle on his position regarding the enjoined
overtime regulations.  He expressed his
wish to examine both the exemption threshold and duties test, acknowledging
that the current threshold is behind the times, but expressed concern with the
extreme impact of the enjoined regulations.

Acosta
also voiced strong support for the traditional definition of the joint-employer
relationship, contrary to the position taken by the Obama Administration.  In response to bi-partisan concerns about the
future of job training and Job Corps. programs, Acosta voiced intent to
evaluate job-training programs with a specific emphasis on fostering successful
programs at the local level.  Acosta
clearly stated support for the Department to return to issuing Opinion Letters,
as opposed to the often amorphous Interpretations issued by Obama’s DOL.  When asked about the way OFCCP has been using
statistics in compliance evaluations, Acosta simply recognized the validity of
disparate impact analysis in discrimination cases.

Generally, with respect to
the reorganization of the Department and the reexamination of regulations, as
instructed by recent Executive Orders, Acosta made clear that he would be
responsive to the directions from his boss, the President.

Pres. Trump Issues Executive Order to Reorganize the Executive Branch

The ?Administrative State? has received a frontal assault.  President Trump signed an Executive Order that is likely to have far reaching consequences in shaping the structure and programs of executive agencies during the Trump Administration and beyond.  Indeed, the new EO may be the harbinger of the most significant restructuring of the federal agencies since President Franklin Roosevelt, which then saw the greatest expansion of the federal bureaucracy.  The Trump administration may implement the most significant devolution of agencies in generations which will fundamentally change how the federal government operates.

President Trump signed a new EO dated March 13, 2017, entitled a ?Comprehensive Plan for Reorganizing the Executive Branch. ?  The new EO directs the Director of Office of Management and Budget (?OMB?) to follow three steps to reorganize the executive branch.  First, OMB is to collect from each federal agency within 180 days a proposed plan to reorganize the executive branch agency, and to improve effectiveness and accountability.

Additionally, public comments are to be submitted pursuant to a notice published in the Federal Register by the Director of the OMB inviting the public to suggest improvements in the organization and functioning of the executive branch.
Finally, within 180 days after the comment period, OMB then is to ?submit to the President a proposed plan to reorganize the executive branch in order to improve the efficiency, effectiveness, and accountability of agencies.?  In addition to addressing the elimination of ?unnecessary agencies, components of agencies, and programs and to merge functions, the plan also is to include recommendations for any legislation or administrative measures necessary to achieve the proposed reorganization.?  Presidential action and necessary legislation then would follow.

Next steps:  Employers, and in particular Federal contractors, will need to carefully monitor these developments.  Specifically, the following steps should be taken:

? When the comment period is opened, the comments should be submitted and there should be full engagement by the business community stakeholders.
? Recognizing that the federal budget for many agencies and programs may be cut, employers should develop recommendations on how critical missions can be completed more efficiently and effectively.
? Specific focus should be on the agencies affecting workplace obligations, including the key DOL agencies — Wage and Hour, OSHA and OFCCP, as well as the EEOC and NLRB.
? Additionally, federal procurement processes also may be addressed, including changes in agencies/programs, oversight, and funding. Additional changes may result in the government?s use of consolidated data to negotiate better deals for the government.

Contact your FortneyScott attorney or info@fortneyscott.com for additional information about these developments and the steps that FotneyScott is taking to address these significant matters.

DoD Issues Draft Guidebook for Acquiring Commercial Items

“Commercial
item” purchases are often favored both by the Government and by contractors, as
they are subject to fewer regulations and may be procured more quickly, using
streamlined Federal Acquisition Regulation (“FAR”) Part 12 procedures.  Recently enacted laws encourage this strong
preference for the acquisition of commercial supplies and services.  On February 24, 2017, the Department of
Defense (“DoD”) issued a draft Guidebook for Acquiring Commercial
Items
(“Guidebook”).

The draft Guidebook is comprised of two parts – Part A:
Commercial Item Determination and Part B: Pricing Commercial Items.  Part
A
of the Guidebook proposes processes and decision trees, and some examples
of their applications, for DoD personnel to use in assessing whether a product
or service qualifies as a “commercial item” under FAR 2.101 “Commercial item”.   Part B of the Guidebook proposes
processes and decision trees for conducting a price analysis to determine the
appropriateness of a contractor’s proposed commercial item pricing.

Takeaways:

  • The Guidebook proposes a road map for the DoD to
    use to determine whether a particular product or service will qualify as a “commercial
    item.”
  • Once DoD issues a Commercial Item Determination
    (“CID”), it can be used in future DoD procurements.
  • The Guidebook, once issued, should be of
    significant benefit to contractors, too. It can be used to guide contractors with
    regard to what they need to provide to DoD to demonstrate that their product or
    service, or the product or service of their subcontractor(s), qualifies as a “commercial
    item.”

The period for submission of comments on the Guidebook has
been extended; comments are due on or before May 1, 2017.

If you have
questions about this draft Guidebook, or are interested in learning more about
whether a particular product or service might qualify as a “commercial
item” subject to more streamlined acquisition requirements and processes, please
contact your Fortney & Scott attorney, or Susan Warshaw Ebner.

CSALs were Mailed on February 17, 2017/Revised Pay Transparency Notice

OFCCP has confirmed that as of February 17, 2017 that it has mailed 800 Corporate Scheduling Announcement Letters (CSALs) in its first release of the FY2017 Scheduling List. These are the first CSALs issued by OFCCP in approximately two years. In the revised FAQs for CSALs, OFCCP stated that these CSALs are being sent directly to establishments notify them that they will be scheduled for a compliance evaluation during the upcoming scheduling cycle.  According to the FAQs on the Federal Contractor Selection System (FCSS), the 800 establishments cover 375 distinct companies in 29 industries. The FY2017 Scheduling List also includes 30 Corporate Management Compliance Evaluations (CMCEs).
In addition, OFCCP made a small change to the notice that federal contractors must post regarding the Pay Transparency regulations, which became effective on January 11, 2017 and apply to all covered contracts entered into or modified as of that date.  OFCCP has indicated that federal contractors should implement the revised Notice as soon as practicable.  The revised notice can be found here.

Your FortneyScott attorney can provide you with advice on how to respond to these developments, or contact us by email at info@fortneyscott.com for additional information.

Ninth Circuit Court of Appeals Rules Against Reinstating the Travel Ban

In a unanimous ruling, a panel of three judges from the Ninth U.S. Circuit Court of Appeals have upheld the suspension of the immigration travel ban.  FortneyScott’s attorneys will continue to monitor this breaking development and will keep you updated.

FortneyScott Amici Curiae Brief Filed in 9th Circuit in State of Washington v. Trump et al.

Amici Curiae Brief filed by FortneyScott and Employment Law Alliance law firms in State of Washington v. Trump et al., No. 17-35105 (9th Cir, filed February 7, 2017).

OMB Renews Section 503 Disability Self-ID Form

OMB renewed the mandatory language for the Section 503 Voluntary Self-Identification of Disability form for 3 years. The new form expires on January 31, 2020.

Contractors need to replace hard copy forms with the new one immediately. Additionally, electronic versions of the Voluntary Self-Identification of Disability may either be:

  • Replaced; or
  • Updated with the new ?Expires? date of 1/31/2020.

As a reminder, contractors may create an electronically fillable version of the form used to invite self-identification provided that form meets certain requirements. The e-form must:

  • Display the OMB number and expiration date;
  • Contain the text of the form without alteration;
  • Use a sans-serif font, such as Calibri or Arial; and
  • Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).

It is our understanding that OFCCP will give a grace period of up to 10 days as long as contractors make good faith efforts to comply.

Federal Contractors Must Now Provide Privacy Training

At the last minute, the Federal Acquisition
Regulations
were amended by the Obama Administration requiring federal
contractors to provide employees with “privacy training.” The new rule, issued
on January 20, 2017, was effective January 19, 2017!

Under the privacy rule, contractors must provide a program to
train employees to protect personally identifiable information, both their own
and that to which they have access.
Contractors must:

  • identify all personally identifiable information
    (PII) and those who have access or handle it
  • must implement a mandated multi-step training
    program regarding access, use, and maintenance of PII
  • ban access to PII to all who have not completed
    the mandated training.

All contracts with PII, including those for commercial
items, are covered and the requirement to provide privacy training flows-down to all subcontractors including
those for commercial items when they involve handling and safeguarding of PII.

White House Issues Memorandum Freezing New and Pending Regulations

On
January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum instructing the
heads of executive departments and agencies to take immediate steps to ensure
that President Trump’s appointees and designees have the opportunity to review
any new or pending regulations.

Key steps outlined in the memorandum:

  • Send no regulation to the Office of the Federal
    Register (“OFR”) until a department or agency head appointed or designated by
    President Trump-or an authorized delegate-reviews and approves the regulation
  • Immediately withdraw, for review and approval,
    regulations that have been sent to the OFR but are not published in the Federal Register
  • As permitted by applicable law, postpone by 60
    days the effective date of regulations that have been published in the OFR but
    have not taken effect, and consider proposing for notice-and-comment a rule to
    delay the effective date for regulations beyond the 60-day period
  • In cases where a rule’s effective date has been
    delayed in order to review questions of fact, law, or policy, consider
    proposing further notice-and-comment rulemaking and, for such regulations,
    notify the OMB Director and “take further appropriate action in consultation
    with the OMB Director”

The effect of this memorandum on the new overtime
regulations and Union Persuader rule–both currently enjoined by federal courts–as well as the new EEO-1 reporting requirements remains to be seen. FortneyScott’s
attorneys will continue to monitor this development and keep you updated.