The NLRB Puts Federal Contractors in a Double-Bind: Settle Now or Risk Losing Future Contracts

Seyfarth Synopsis: Beginning July 1, 2016, pursuant to the President’s Fair Pay and Safe Workplaces Executive Order the NLRB will now require any Federal Contractor that has a Complaint issued against it by a Regional Director to submit information that may lead to the loss of future federal contracts unless that employer settles or resolves the charge prior to the issuance of the Complaint.

 

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order with the stated purpose of “promot[ing] economy and efficiency in procurement by contracting with responsible sources who comply with labor laws.” The Executive Order mandates that contracting agencies look at a federal contractor’s history of violating various labor and employment laws, including the NLRA, when deciding whether to do business with the contractor. The Executive Order further requires that agencies track, and that contractors must disclose, any “administrative merits determination[s]” that the contracting party violated the NLRA.  While one would reasonably assume that an “administrative merits determination” that a party violated the NLRA would only include a decision of the Board or an ALJ, last May the Department of Labor issued proposed guidance interpreting “administrative merits determination” to include a “complaint issued by any Regional Director.”

 

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