David S. Fortney

DAVID S. FORTNEY

CO-FOUNDER

1909 K Street, NW, Suite 330, Washington, DC 20006

Tele: (202) 689-1200  | Fax: (202) 689-1209

David Fortney is a co-founder of Fortney & Scott, LLC, a Washington, D.C.-based law firm counseling and advising clients on the full spectrum of workplace-related matters, including employment discrimination and labor matters, compliance programs, government contracting, and developing strategies for avoiding or responding to workplace-related crises.


Mr. Fortney has a broad-based practice representing and counseling employers and executives in employment and labor matters, including legal compliance with equal employment opportunity requirements and addressing pay equity initiatives and the evolving standards relating to inclusion and opportunity programs; wage and hour matters including Department of Labor audits and enforcement, and collective action litigation claims against employers; union organizing and collective bargaining; and, workplace health and safety. He brings experience from the private and public sectors in advising clients on these issues, and he frequently represents clients before federal agencies, including the U.S. Department of Labor’s agencies, the Equal Employment Opportunity Commission, and the National Labor Relations Board. Mr. Fortney also advises U.S. and global employers on pay transparency and pay equity laws including developing compliance strategies across the patchwork of requirements, modeling legally compliant compensation analyses, developing remediation strategies, and confirming accuracy of mandatory reporting.


Mr. Fortney has been widely recognized for his professional accomplishments, including being named one of the leading employment lawyers in Washington, D.C. by the CHAMBERS USA survey of America’s Leading Lawyers for Business. He also is recognized in The Best Lawyers in America, Washington D.C.’s, Washington D.C.’s Best Lawyers, and Super Lawyers. Mr. Fortney has received an AV rating (the highest level) by Martindale-Hubbell.


Before co-founding the firm, Mr. Fortney previously served as the chief and deputy legal officer of the U.S. Department of Labor in Washington, D.C. during the term of President George H.W. Bush. As Acting Solicitor of Labor, he was responsible for enforcing over 140 laws regulating the nation’s workplaces and managing an agency with 800 attorneys and support staff. He advised the Department of Labor agencies on a broad range of legal, policy, legislative, regulatory and enforcement issues.


Mr. Fortney’s expertise and experience has been requested in testimony before the U.S. Congress, and state legislative committees and before the Equal Employment Opportunity Commission and the National Academy of Sciences.


Mr. Fortney works closely in support of the employer compliance, training and outreach efforts by The Institute for Workplace Equality and the American Employment Law Council. He also hosts the DC Insider – Employer Update™ podcast, is a co-editor of the Federal Employment Law Insider monthly newsletter, and frequently presents at the leading bar association and professional meetings. He also has media experience, including appearances on CNN, CBS and Fox News.

Firm Practices


Professional Activities

  • American Bar Association, EEO Committee and former Labor and Employment Section Council Member (2 terms)
  • American Employment Law Council, Treasurer and Member of Board of Directors
  • College of Labor and Employment Lawyers, Fellow
  • Employment Law Alliance, Member
  • Federalist Society, Member and Former Chair, Labor and Employment Committee
  • HR Policy Association, Member of Legal Council
  • The Institute for Workplace Equality, Co-Founder and Co-Director
  • U.S. Chamber of Commerce, Member of Labor Relations Committee
  • Wage and Hour Defense Institute, Member
  • Former Member, National Advisory Committee for Labor Provisions of U.S. Free Trade Agreements


Admitted to Practice

  • District of Columbia
  • Commonwealth of Pennsylvania
  • U.S District Court of District of Columbia
  • Supreme Court of the United States


Education

  • Duquesne University School of Law (J.D.)
  • The Pennsylvania State University (B.A.)

FAR Council Implements EO 14398: Federal Contractor Compliance Obligations Begin

April 28, 2026
Federal contractors are facing immediate changes to implement stepped-up efforts to restrict DEI discrimination, including new mandatory contract clauses, expanded audits, and significant potential legal exposure. These far-reaching changes will impact prime contractors and all tiers of subcontractors. Any employer that is a federal contractor should immediately prepare for these new compliance obligations.

DOL Proposed Joint Employer Rule

April 23, 2026
DOL Proposes New Joint Employer Standard In an effort to create a uniform, nationwide standard for determining joint employer status, the U.S. Department of Labor’s Wage and Hour Division will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register on April 23, 2026. The proposed Joint Employer Rule aims to restore a standard similar to the more business-friendly Trump 1.0 rule. Specifically, the proposed rule clarifies when multiple organizations would be considered joint employers under the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. Comments are due within 60 days of the published date, or June 22, 2026. The proposed rule seeks to end nearly a decade of vacillating rules, as both the Trump and Biden administrations had tried promulgating a final rule previously. Those prior attempts created a series of conflicting executive and judicial rulings. As stated by acting Labor Secretary Keith Sonderling, this NPRM is intended to establish a “clear standard on joint employment.” Four-Factor Test The proposed rule modifies the Trump 1.0 standard, which focused heavily on requiring actual control by one company over another to establish joint employment. A prior judicial challenge to that approach was successful, requiring some modification to any new standard introduced thereafter. The proposed rule, therefore, responds by offering a four-factor test that is still heavily weighed on aspects of control. The four factors are whether a company: has the power to hire or fire a worker; supervises or controls a worker’s schedule or conditions of employment to a substantial degree; determines the rate and method of payment; and maintains a worker’s employment records. No single factor is dispositive, and the analysis will focus on the totality of the circumstances. Single National Standard Still a Goal The DOL acknowledged that some circuit courts continue to consider more factors and said the four listed factors were “not exhaustive.” Additionally, other federal agencies and several states have their own joint employer standards, some of which are directed at specific industries. For instance, the NLRB finalized its joint employer rule in late February 2026, with a similarly aligned standard that has some variances from DOL’s proposed standard. A final rule is anticipated soon after the comment period closes. Once issued, the rule may be subject to judicial challenges from interested parties that previously opposed similar regulatory approaches. Contact your FortneyScott attorney for additional information on how to submit comments and/or prepare for its impact on your workforce.

FAR Council Moves Rapidly to Implement Executive Order 14398, Imposing Imminent Compliance Obligations on Federal Contractors

April 21, 2026
Federal contractors are facing immediate changes to implement stepped-up efforts to restrict DEI discrimination, including new mandatory contract clauses, expanded audits, and significant potential legal exposure. These far-reaching changes will impact prime contractors and all tiers of subcontractors. Any employer that is a federal contractor should immediately prepare for these new compliance obligations. The Federal Acquisition Regulatory Council (FAR Council), which sets government-wide procurement policy and regulation for all federal agencies, has moved quickly to implement Executive Order (EO) 14398 , Addressing DEI Discrimination by Federal Contractors. Specifically, the FAR Council: Issued government-wide implementation guidance and class deviation language for all federal agencies to incorporate a mandatory contract clause, as prescribed in EO 14398, as soon as April 24, 2026, in new solicitations, and by July 24, 2026, for bilateral modifications of existing contracts. The class deviation authorizes agency-wide implementation of new requirements in federal contracts before the Federal Acquisition Regulations (FAR) are amended formally. Requested emergency approval, under the Paperwork Reduction Act (PRA), to allow immediate enforcement of EO 14398’s information collection and reporting requirements. Join FortneyScott for a complimentary briefing on Monday, April 27, at noon ET . Please register here . Contact your FortneyScott attorney for additional information on how to prepare for this new contract clause.

DEI Compliance Updates for Employers

April 13, 2026
Employers need to continue to be vigilant in their compliance efforts for DEI and related programs. Here are two quick updates: To assist employers, our most recent DC Insider-Employer Update podcast – EO 14398 and the Procurement Power Play: Compliance, Contracts, and Consequences – provides a great overview of the newest Executive Order and federal contractor compliance. Additionally, late Friday, April 10 th , DOJ announced the first False Claims Act settlement based on DEI claims against IBM for $17 million. Please contact your FortneyScott attorney for more information, and visit our website ( www.fortneyscott.com ) for our recent special webinar .

Part III: Trump Administration Increases DEI Pressure

April 13, 2026
The Trump Administration continues to push for the elimination of “illegal DEI.” Join FortneyScott attorneys on Thursday, April 9, 2026 at noon EDT to learn the latest developments by multiple federal agencies targeting DEI programs and policies. The webinar will address the key federal agencies’ expansive efforts, including: EEOC , focusing on the agency’s latest challenges to DEI, including expansive investigations of corporate DEI programs, subpoena enforcement litigation and limiting the rights of trans workers; DOJ , including the False Claims Act investigations, and challenges to the constitutionality of EO 14173 in 4th and 7th Circuits; FTC & FCC , highlighting the Mansfield Program, and warning law firms about antitrust compliance, and how DEI can impact regulatory approvals; and, Certification of Compliance , including GSA’s proposed Certification for grantees, and the implications for federal contractors. We also will provide key takeaways for DEI compliance, and steps to mitigate the risks of federal government enforcement actions based on illegal DEI matters. This webinar is the final 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.
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