OFCCP Begins Enforcement of EO 13496; Compliance Evaluations Include Verification

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has begun to include in its audits a verification of contractors’ compliance with the newly issued regulations associated with President Obama’s Executive Order 13496. Executive Order 13496 and its implementing regulations, issued earlier this year, require that notice of employee rights under the National Labor Relations Act (“NLRA”) be provided to NLRA-covered employees of federal contractors and subcontractors who engage in work (directly or indirectly) related to the performance of a federal contract. The law also requires that the applicable notice language be included in federal contracts worth $100,000 or more and related subcontracts and purchase orders worth $10,000 or more. These requirements apply only to government solicitations issued on or after June 21, 2010. On May 24, 2010, Seyfarth Shaw issued a One Minute Memo addressing, in greater detail, the specific requirements of EO 13496 and its implementing regulations. Following is a link to that Memo: www.seyfarth.com/omm052410/.

The OFCCP has been charged with physically inspecting contractors’ facilities and contracts/ subcontracts/purchase orders for compliance with EO 13496. On June 15, 2010, the OFCCP issued a directive providing instructions to its Compliance Officers (“COs”) for conducting compliance verifications under EO 13496. The directive states that COs will conduct EO 13496 compliance verifications in the course of onsite audits conducted under EO 11246, Section 503 and/or VEVRAA. It will also investigate in response to an individual complaint of non-compliance.

The June 15th directive further states that COs will notify a contractor scheduled for an onsite that EO 13496 compliance will be checked when the CO comes onsite, by physical inspection and a review of sample contracts/subcontracts/purchase orders. The CO will inspect the facility for proper placement of the posting and review the contractor’s employee website for any electronic posting. The CO also will ask the contractor to have available at the onsite at least the last three contracts/subcontracts/purchase orders subject to EO 13496 and will explain that a review of more may be necessary. The contractor must have all such contracts readily available. If the CO finds non-compliance, he or she will attempt to correct the violation during the onsite. If the violation is not corrected, the CO will include the violation in his or her write-up and send the findings to the Regional Office. The Regional Office will notify the OFCCP’s Washington D.C. office, which will send notice to the Office Of Labor Management Standards, the agency responsible for commencement of enforcement proceedings.

If the OFCCP receives an employee complaint of non-compliance, it will notify the contractor by letter within 10 calendar days of receipt of the complaint, specifying the allegations and stating that an investigation will be conducted.  The name of the complaining party will remain confidential, but a copy of the contractor’s employee roster will be requested to verify the complaining party’s employment status.

The complaint must be fully processed within 60 days of the date of receipt by the investigating field office. While investigating a complaint, a full EO 13496 compliance verification will be conducted. The OFCCP also may send a technical assistance letter outlining EO 13496 and its requirements to a contractor for whom it receives information (other than by written complaint) that the contractor may not be complying with the Order.

A copy of the posting, the Executive Order and the regulations can be found at www.dol.gov/olms/regs/compliance/EO13496.htm. The OFCCP also has issued a PowerPoint, which can be found at www.dol.gov/ofccp/regs/compliance/Contractor_Compliance_presentation.ppt#1.

For more information, please contact the Seyfarth Shaw attorney with whom you work, or any Affirmative Action/Diversity attorney on our website.