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What is Executive Order 13201?
What are these employee rights?
Why is the notice sometimes called the Beck poster?
How can I have my union dues or fees reduced so that I am
not paying for union activities that are not related to collective bargaining,
contract administration, or grievance adjustment?
What is the definition of government contract under E.O. 13201
and the implementing regulations?
Do the employee rights described on the Notice of Employee
Rights Concerning Payment of Union Dues poster only apply to employees of
Government contractors?
What is the definition of subcontract under E.O. 13201 and
the implementing regulations?
What does the term "federally assisted contract" mean?
Does the Simplified Acquisition Threshold exemption flow
down?
Is a natural gas company that supplies gas to Federal buildings
but does not have a written contract with a Federal agency, covered by Executive
Order 13201?
I have a government contract to supply food to the army.
I put all of the required information in my purchase order to the company
that sells me tomatoes. Is the company that sells me tomatoes required to
meet any E.O. 13201 obligations?
I supply items and services for a major corporation that
has many contracts with the government. The items and services I supply
have nothing to do with the contracts. Does my company have to comply with
E.O. 13201?
I supplied products to a company that subsequently used
them to perform government contracts, but I had no knowledge at the time
of sale of the company’s ensuing use of my products. Is my company a subcontractor
that must comply with E.O. 13201 despite its lack of notice?
Under E.O. 13201, what employee notice clause must be included
in government contracts?
Must the employee notice clause be quoted verbatim in contracts,
subcontracts, or purchase orders?
What language should be used when the employee notice clause
is incorporated by reference in a contract or subcontract?
Must the Executive Order 13201 clause be added retroactively
to contracts entered into prior to April 28, 2004?
Is a change order considered to be a modification of a contract?
How should the employee notice clause be titled in a contract?
Are any contracts exempt from the employee notice clause requirement?
Are contracts issued before the effective date of E.O. 13201
covered?
Are there any other exemptions from the employee notice clause
requirement?
Can an exemption be withdrawn?
A company has a government contract and has 50 sites, but
only one of those sites has anything to do with providing services or products
to the government for that contract. Is the poster required at all 50 sites?
Does the contractor need to get an exemption for the remaining 49 sites
if the poster is to be posted at the unique site? Would the other 49 sites
have to file for a waiver?
How will employers be able to obtain copies of the Notice
of Employee Rights Concerning Payment of Union Dues poster?
If a contractor downloads the Notice of Employee Rights Concerning
Payment of Union Dues poster what size should it be?
Why is there a separate poster for contractors subject to
the Railway Labor Act?
What contractors or facilities are exempt from the posting
requirements?
Does the exemption from posting for fewer than 15 employees
mean all employees or fewer than 15 unionized employees?
Does the exemption from posting for fewer than 15 employees
mean fewer than 15 employees at a single worksite or that the contractor
must have fewer than 15 total employees?
New! If a contractor is in a right-to-work state, but is
covered by the Railway Labor Act, does the right-to-work exemption apply?
Does the posting requirement apply to a worksite if the prime
contractor is not unionized, but subcontractors are?
I am a construction contractor with employees who are members
of a number of different trade unions. Am I exempt from the posting requirement
because I don't have an exclusive union situation?
Can the posting requirement be waived in any other circumstances?
How will the Department determine whether a contractor is
in compliance with E.O. 13201?
What happens during a compliance evaluation?
What is in the evaluation record?
What are the procedures for filing a complaint?
What happens during the investigation of a complaint?
What are the procedures to be followed when a violation is
found during a complaint investigation or compliance evaluation?
Under what circumstances, and how, will enforcement proceedings
under E.O. 13201 be conducted?
What happens during the administrative enforcement proceedings?
What sanctions and penalties may be imposed for noncompliance?
What procedures will the Department follow in imposing such
sanctions and penalties?
Under what circumstances must a contractor be provided the
opportunity for a hearing?
How can you learn which contractors have been debarred?
Under what circumstances can a contractor obtain reinstatement?
What actions may the Assistant Secretary take in the case
of intimidation and interference?
___________________________________________________________________________
Q. What is Executive Order 13201?
A. Executive Order 13201 (E.O. 13201) requires Government contractors and
subcontractors to post to inform their employees that under Federal law
they have certain rights related to union membership and the use of union
dues and fees.
Q.What are these employee rights?
A. Under Federal law employees cannot be required to join a union or maintain
membership in a union to retain their jobs. Employees who are subject to
a union security clause and choose not to be union members may object to
the use of their compulsory union dues and fees for union expenditures that
are not related to representational activities, such as collective bargaining,
contract administration and grievance adjustment. Employees who object to
paying for non-representational activities may be entitled to a refund and
appropriate reduction of future payments.
Q. Why is the notice sometimes called the Beck
poster?
A. These rights are often referred to as "Beck rights" because they were
first recognized in 1988 by the United States Supreme Court in Communications
Workers of America v. Beck. Under the National Labor Relations Act
(NLRA), an employer and a union may enter into an agreement requiring all
employees in the bargaining unit to pay periodic union dues or fees as a
condition of continued employment, whether or not the employees otherwise
wish to become union members. The Court held that a union may not, over
the objections of nonmember employees, expend funds collected from their
compulsory agency fee payments on activities that are not related to collective
bargaining, contract administration, or grievance adjustment.
Q. How can I have my union dues or fees reduced
so that I am not paying for union activities that are not related to collective
bargaining, contract administration, or grievance adjustment?
A. For information on exercising your rights, contact the National Labor
Relations Board (NLRB). A zip code, city, state or region search of the
closest office can be made online from the NLRB home page by clicking on
the "Contact Us" text at www.nlrb.gov
or you can call toll-free 1-866-667-NLRB (1-866-667-6572).
Q. What is the definition of government contract
under E.O. 13201 and the implementing regulations?
A. Government contract means any agreement or modification thereof between
any contracting agency and any person for the purchase, sale, or use of
personal property or nonpersonal services. The term "personal property"
includes supplies, and contracts for the use of real property (such as lease
arrangements), unless the contract for the use of real property itself constitutes
real property (such as easements). The term "nonpersonal services" includes,
but is not limited to, utilities, construction, transportation, research,
insurance, and fund depository. The term "government contract" does not
include (a) agreements in which the parties stand in the relationship of
employer and employee and (b) Federally assisted contracts.
Q. Do the employee rights described on the Notice
of Employee Rights Concerning Payment of Union Dues poster only apply to
employees of Government contractors?
A. No, these employee rights apply to all employees.
Q. What is the definition of subcontract under
E.O. 13201 and the implementing regulations?
A. Subcontract means any agreement or arrangement between a contractor
and any person (in which the parties do not stand in the relationship of
an employer and an employee): (a) for the purchase, sale, or use of personal
property or nonpersonal services which, in whole or in part, is necessary
to the performance of any one or more contracts; or (b) under which any
portion of the contractor's obligation under any one or more contracts is
performed, undertaken, or assumed.
Q. What does the term "federally assisted contract"
mean?
A. "Federally assisted contracts" as used in 29 CFR 470.1(j) has the same
meaning as the term "federally assisted construction contract" as defined
in the regulations implementing Executive Order 11246, Equal Employment
Opportunity, at 41 CFR 60-1.3. The definition follows:
Federally assisted construction contract means any agreement or modification
thereof between any applicant and a person for construction work which is
paid for in whole or in part with funds obtained from the Government or
borrowed on the credit of the Government pursuant to any Federal program
involving a grant, contract, loan, insurance, or guarantee, or undertaken
pursuant to any Federal program involving such grant, contract, loan, insurance,
or guarantee, or any application or modification thereof approved by the
Government for a grant, contract, loan, insurance, or guarantee under which
the applicant itself participates in the construction work.
Q. Does the Simplified Acquisition Threshold exemption
flow down?
A. Yes, the Simplified Acquisition Threshold exemption does flow down.
Executive Order 13201 provides the text of contractual provisions that Federal
agencies must include in Government contracts. These provisions, however,
need not be included in contracts for purchases under the Simplified Acquisition
Threshold. Contractors must include these same provisions in their nonexempt
subcontracts and purchase orders, so that the provisions will be binding
upon each subcontractor or vendor. Like the initial contractor, subcontractors
and vendors need not include the text in contracts for purchases under the
Simplified Acquisition Threshold.
Q. Is a natural gas company that supplies gas
to Federal buildings but does not have a written contract with a Federal
agency, covered by Executive Order 13201?
A. Yes, the gas company would be covered by Executive Order 13201. The
supplying of gas or other utilities would constitute a government contract
as defined at 29 CFR 470.1(j). However, the exemption for transactions below
the Simplified Acquisition Threshold (currently $100,000) might apply. As
provided in 29 CFR 470.3(a), the employee notice clause does not have to
be included in contracts for indefinite quantities if the contracting agency
or contractor has reason to believe that the amount to be ordered in any
year under the contract will be less than the Simplified Acquisition Threshold.
Q. I have a government contract to supply food
to the army. I put all of the required information in my purchase order
to the company that sells me tomatoes. Is the company that sells me tomatoes
required to meet any E.O. 13201 obligations?
A. Yes, unless the purchase order is below the Simplified Acquisition Threshold
of $100,000. Covered government contractors and subcontractors must include
the employee notice clause in their nonexempt subcontracts and purchase
orders, so that the provisions will be binding upon each subcontractor or
vendor. The regulations, at 29 CFR 470.3, describe what subcontracts and
purchase order are exempt. The term "contractor" includes a prime contractor
or subcontractor, at any tier.
Q. I supply items and services for a major corporation
that has many contracts with the government. The items and services I supply
have nothing to do with the contracts. Does my company have to comply with
E.O. 13201?
A. You would be a covered subcontractor required to comply with E.O. 13201
only if you have an agreement with the contractor for the purchase, sale
or use of personal property or non-personal services which, in whole or
in part, are necessary to the performance of any one or more government
contracts or if you have an agreement under which you perform or assume
any portion of the contractor's obligation under a government contract.
Q. I supplied products to a company that subsequently
used them to perform government contracts, but I had no knowledge at the
time of sale of the company’s ensuing use of my products. Is my company
a subcontractor that must comply with E.O. 13201 despite its lack of notice?
A. E.O. 13201 coverage does not exist for an employer merely because that
employer sells a product to another company that is subsequently used by
that company in the performance of a Government contract. In order for EO
13201 coverage to exist, the employer must have entered into a subcontract
with the Government contractor (that is, an agreement or arrangement for
the purchase of a product which is necessary to the performance of any one
or more Government contracts). Government contractors must include the EO
13201 notice clause in their nonexempt subcontracts and purchase orders,
so that the provisions will be binding upon each subcontractor or vendor.
Thus, the requirements of Executive Order 13201 and its implementing regulations
become binding on the subcontractor only if the notice clause is included,
directly or by reference, in the text of the subcontract or purchase order.
Q. Under E.O. 13201, what employee notice clause
must be included in government contracts?
A. Except in exempted contracts as discussed below, all government contracting
agencies must, to the extent consistent with law, include the following
provisions in government contracts:
1. During the term
of this contract, the contractor agrees to post a notice in conspicuous
places in and about its plants and offices, including all places where notices
to employees are customarily posted. The notice must include the following
information (except that the last two sentences must not be included in
notices posted in the plants or offices of carriers subject to the Railway
Labor Act, as amended (45 U.S.C. 151-188)).
NOTICE TO EMPLOYEES
Under federal law, employees cannot be required to join a union or maintain
membership in a union in order to retain their jobs. Under certain conditions,
the law permits a union and an employer to enter into a union-security agreement
requiring employees to pay uniform periodic dues and initiation fees. However,
employees who are not union members can object to the use of their payments
for certain purposes and can only be required to pay their share of union
costs relating to collective bargaining, contract administration, and grievance
adjustment. If you do not want to pay that portion of dues or fees used
to support activities not related to collective bargaining, contract administration,
or grievance adjustment, you are entitled to an appropriate reduction in
your payment. If you believe that you have been required to pay dues or
fees used in part to support activities not related to collective bargaining,
contract administration, or grievance adjustment, you may be entitled to
a refund and to an appropriate reduction in future payments.
For further information concerning your rights, contact the National Labor
Relations Board (NLRB) either at one of its Regional offices or at the following
address:
National Labor Relations Board
Division of Information
1099 14th Street, NW
Washington, D.C. 20570
1-866-667-6572
1-866-315-6572 (TTY)
To locate the nearest NLRB office, see NLRB's website at www.nlrb.gov.
2. The contractor
will comply with all provisions of E.O. 13201 of February 17, 2001, and
related rules, regulations, and orders of the Secretary of Labor.
3. In the event that
the contractor does not comply with any of the requirements set forth in
paragraphs (1) or (2) above, this contract may be cancelled, terminated,
or suspended in whole or in part, and the contractor may be declared ineligible
for further government contracts in accordance with procedures authorized
in or adopted pursuant to E.O. 13201 of February 17, 2001. Such other sanctions
or remedies may be imposed as are provided in E.O. 13201 of February 17,
2001, or by rule, regulation, or order of the Secretary of Labor, or as
are otherwise provided by law.
4. The contractor
will include the provisions of paragraphs (1) through (4) herein in every
subcontract or purchase order entered into in connection with this contract
unless exempted by rules, regulations, or orders of the Secretary of Labor
issued pursuant to section 3 of E.O. 13201 of February 17, 2001, so that
such provisions will be binding upon each subcontractor or vendor. The contractor
will take such action with respect to any such subcontract or purchase order
as may be directed by the Secretary of Labor as a means of enforcing such
provisions, including the imposition of sanctions for noncompliance: However,
if the contractor becomes involved in litigation with a subcontractor or
vendor, or is threatened with such involvement, as a result of such direction,
the contractor may request the United States to enter into such litigation
to protect the interests of the United States.
Q. Must the employee notice clause be quoted verbatim
in contracts, subcontracts, or purchase orders?
A. No. The employee notice clause need not be quoted verbatim in a contract,
subcontract, or purchase order. Instead, the clause may be made part of
such agreements by reference. In that case, the agreement will contain a
citation to 29 CFR part 470.
Q. What language should be used when the employee
notice clause is incorporated by reference in a contract or subcontract?
A. The clause can be incorporated by language such as "The contractor agrees
to comply with the provisions of 29 CFR part 470."
Q. Must the Executive Order 13201 clause be added
retroactively to contracts entered into prior to April 28, 2004?
A. No, the clause must only be added to contracts that are entered into
or modified on or after April 28, 2004 and that resulted from solicitations
issued on or after April 18, 2001. Modification of a contract is defined
as "any alteration in the terms and conditions of that contract, including
amendments, renegotiations, and renewals."
Q. Is a change order considered to be a modification
of a contract?
A. Yes
Q. How should the employee notice clause be titled
in a contract?
A. It can be referred to as "Executive Order 13201 Compliance."
Q. Are any contracts exempt from the employee notice
clause requirement?
A. The employee notice clause does not have to be included in collective
bargaining agreements as defined in 5 U.S.C. 7103(a)(8). The clause also
does not have to be included in government contracts for purchases below
the "Simplified Acquisition Threshold" (currently $100,000) as defined in
the Office of Federal Procurement Policy Act, 41 U.S.C. 403, provided that:
1. No agency, contractor,
or subcontractor is permitted to procure supplies or services in a way designed
to avoid the applicability of the Order and the implementing regulations;
and
2. The employee notice
clause must be included in contracts and subcontracts for indefinite quantities,
unless the contracting agency or contractor has reason to believe that the
amount to be ordered in any year under such a contract or subcontract will
be less than the Simplified Acquisition Threshold.
Q. Are contracts issued before the effective date
of E.O. 13201 covered?
A. The Executive Order does not apply to Government contracts resulting
from solicitations issued before April 18, 2001.
Q. Are there any other exemptions from the employee
notice clause requirement?
A. The Deputy Assistant Secretary for Labor-Management Programs may exempt
a contracting agency or any person from requiring the inclusion of any or
all of the employee notice clause in any specific contract, subcontract,
or purchase order when the Deputy Assistant Secretary deems that special
circumstances in the national interest so require. Requests for such exemptions
must be in writing, and must be directed to the Deputy Assistant Secretary
for Labor-Management Programs, U.S. Department of Labor, 200 Constitution
Avenue, NW, Room N-5605, Washington, D.C., 20210.
Q. Can an exemption be withdrawn?
A. When any contract or subcontract is of a class exempted under 29 CFR
470.3, the Deputy Assistant Secretary for Labor-Management Programs may
withdraw the exemption for a specific contract or subcontract or group of
contracts or subcontracts when, in the Deputy Assistant Secretary's judgment,
such action is necessary or appropriate to achieve the purposes of the Order.
Q. A company has a government contract and has
50 sites, but only one of those sites has anything to do with providing
services or products to the government for that contract. Is the poster
required at all 50 sites? Does the contractor need to get an exemption for
the remaining 49 sites if the poster is to be posted at the unique site?
Would the other 49 sites have to file for a waiver?
A. The poster would be required at all 50 sites unless the work sites are
exempt under at least one of the provisions of § 470.4 of the regulations.
The posting requirement would not apply to:
- Contractors and subcontractors that employ fewer than 15 persons;
- Contractor establishments or construction work sites where no union
has been formally recognized by the prime contractor or certified as the
exclusive bargaining representative of the prime contractor's employees;
- Contractor establishments or construction work sites in jurisdictions
where state law forbids enforcement of union-security agreements;
- Work performed outside the United States that does not involve the recruitment
or employment of workers within the United States.
Also, upon the written request of the contractor, the Deputy Assistant
Secretary for Labor-Management Programs may waive the posting requirements
with respect to any of a contractor's facilities if the Deputy Assistant
Secretary finds that the contractor has demonstrated that:
(1) The facility is in all respects separate and distinct from activities
of the contractor related to the performance of a contract; and,
(2) Such a waiver will not interfere with or impede the effectuation of
the Executive Order.
Q. How will employers be able to obtain copies
of the Notice of Employee Rights Concerning Payment of Union Dues poster?
A. The required employee notice poster, printed by the Department, will
be provided by the Federal contracting agency or may be obtained from the
Division of Interpretations and Standards, Office of Labor-Management Standards,
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-5605, Washington,
DC 20210, or from any field office of the Department's Office of Labor-Management
Standards or Office of Federal Contract Compliance Programs. A copy of the
poster may also be downloaded from the Office of Labor-Management Standards
Web site. (The Notice of Employee Rights
Concerning Payment of Union Dues) (Notice
of Employee Rights Concerning Payment of Union Dues - Spanish Version)
(The Notice of Employee Rights Concerning
Payment of Union Dues for Contractors Subject to the Railway Labor Act)
Additionally, contractors may reproduce and use exact duplicate copies of
the Department's official poster.
Q. If a contractor downloads the Notice of Employee
Rights Concerning Payment of Union Dues poster what size should it be?
A. The poster must be 11 by 17 inches or larger.
Q. Why is there a separate poster for contractors
subject to the Railway Labor Act?
A. The poster for contractors subject to the Railway Labor Act omits the
reference to the National Labor Relations Board (NLRB) because carriers
subject to the Railway Labor Act, as amended (45 U.S.C. 151-188) and their
employees are not within the jurisdiction of the NLRB.
Q. What contractors or facilities are exempt from
the posting requirements?
A. The requirement to post the employee notice does not apply to government
contractors and subcontractors that employ fewer than 15 persons, to contractor
establishments or construction work sites where no union has been formally
recognized by the prime contractor or certified as the exclusive bargaining
representative of the prime contractor's employees, to contractor establishments
or construction work sites in jurisdictions where state law forbids enforcement
of union-security agreements and to work performed outside the United States
that does not involve the recruitment or employment of workers within the
United States.
Q. Does the exemption from posting for fewer than
15 employees mean all employees or fewer than 15 unionized employees?
A. Under the exemption, a contractor or subcontractor that employs fewer
than 15 employees need not post the employee notice, whether or not the
15 employees are members of a union. Therefore, both unionized and non-unionized
employees are counted when determining if the contractor or subcontractor
has fewer than 15 employees.
Q. Does the exemption from posting for fewer than
15 employees mean fewer than 15 employees at a single worksite or that the
contractor must have fewer than 15 total employees?
A. Under the exemption, a contractor or subcontractor that employs 15 or
more employees must post the employee notice, regardless of the number of
employees at each worksite.
Q. If a contractor is in a right-to-work state,
but is covered by the Railway Labor Act, does the right-to-work exemption
apply?
A. Since Section 2, Eleventh of the Railway Labor Act permits union security
agreements in the railway and airline industry despite a state right-to-work
law, RLA covered contractors are never in “jurisdictions where state law
forbids enforcement of union-security agreements [for them].” Therefore,
they are never covered by the right-to-work exemption.
Q. Does the posting requirement apply to a worksite
if the prime contractor is not unionized, but subcontractors are?
A. No, the posting requirement does not apply to contractor establishments
or construction work sites where no union has been formally recognized by
the prime contractor or certified as the exclusive bargaining representative
of the prime contractor's employees.
Q. I am a construction contractor with employees
who are members of a number of different trade unions. Am I exempt from
the posting requirement because I don't have an exclusive union situation?
A. The posting requirement does not apply to work sites where "no union
has been formally recognized by the prime contractor or certified as the
exclusive bargaining representative of the prime contractor's employees."
The term "exclusive" as used here means the exclusive representative for
a particular bargaining unit of a certain type(s) of employees. A prime
contractor can deal with more than one union as exclusive bargaining representative
if each union represents a different type of employee. For example, a construction
contractor may deal with unions for carpenters, plumbers, electricians,
etc. Under these circumstances, the exemption does not apply. The exemption
applies only to work sites where the prime contractor has no union representation
at all for any of its employees.
Q. Can the posting requirement be waived in any
other circumstances?
A. Upon the written request of the contractor, the Deputy Assistant Secretary
for Labor-Management Programs may waive the posting requirement with respect
to any of a contractor's facilities if the Deputy Assistant Secretary finds
that the contractor has demonstrated that: (1) The facility is in all respects
separate and distinct from activities of the contractor related to the performance
of a contract; and (2) such a waiver will not interfere with or impede the
effectuation of E.O. 13201.
Q. How will the Department determine whether a
contractor is in compliance with E.O. 13201?
A. The Deputy Assistant Secretary for Federal Contract Compliance may conduct
a compliance evaluation to determine whether a contractor holding a nonexempt
contract is in compliance with the requirements of E.O. 13201 and the implementing
regulations. Such an evaluation may be limited to compliance with E.O. 13201
or may be included in a compliance evaluation conducted under other laws,
executive orders, and/or regulations enforced by the Department of Labor.
Q. What happens during a compliance evaluation?
A. During such an evaluation, a determination will be made whether:
(1) The employee
notice required by Section 470.2(a) is posted in conspicuous places in and
about each of the contractor's establishments and/or construction work sites
not exempted under Section 470.4, including all places where notices to
employees are customarily posted; and
(2) The provisions
of the employee notice clause are included in nonexempt government contracts
entered into on or after the effective date of the implementing regulations
that resulted from solicitations issued on or after April 18, 2001.
Q. What is in the evaluation record?
A. The results of the evaluation will be documented in the evaluation record,
which will include findings regarding the contractor's compliance with the
requirements of the Executive Order and the implementing regulations and,
as applicable, conciliation efforts made, corrective action taken and/or
enforcement recommended under Section 470.13.
Q. What are the procedures for filing a complaint?
A. An employee of a covered contractor may file a complaint alleging that
the contractor has failed to post the employee notice as required by E.O.
13201 and the implementing regulations; and/or has failed to include the
employee notice clause in nonexempt subcontracts or purchase orders. Complaints
may be filed with the Office of Labor-Management Standards (OLMS) or the
Office of Federal Contract Compliance Programs (OFCCP) at 200 Constitution
Avenue, NW, Washington, DC 20210, or with any OLMS or OFCCP field office.
The complaint must be in writing, be signed by the complainant, and include
- the name, address, and telephone number of the employee who filed the
complaint (the complainant);
- the name and address of the contractor alleged to have violated the
Executive Order;
- an identification of the alleged violation;
- the establishment or construction work site where the violation is alleged
to have occurred; and
- any other pertinent information that will assist in the investigation
and resolution of the complaint.
Q. What happens during the investigation of a
complaint?
A. In investigating complaints filed with the Department, the Deputy Assistant
Secretary for Federal Contract Compliance will evaluate the allegations
of the complaint and develop a case record. The record will include findings
regarding the contractor's compliance with the requirements of E.O. 13201
and the implementing regulations, and, as applicable, a description of conciliation
efforts made, corrective action taken, and/or enforcement recommended.
Q. What are the procedures to be followed when
a violation is found during a complaint investigation or compliance evaluation?
A. If any complaint investigation or compliance evaluation indicates a
violation of E.O. 13201 or the implementing regulations, the Department
will make reasonable efforts to secure compliance through conciliation.
The contractor must correct the violation found by the Department (for example,
by posting the required employee notice, and/or by amending its subcontracts
or purchase orders with nonexempt subcontractors and vendors to include
the employee notice clause), and must commit, in writing, not to repeat
the violation, before the contractor may be found to be in compliance with
the Executive Order or the implementing regulations.
Q. Under what circumstances, and how, will enforcement
proceedings under E.O. 13201 be conducted?
A. Violations of the Executive Order may result in administrative proceedings
to enforce the Order. The bases for a finding of a violation may include,
but are not limited to:
- The results of a compliance evaluation;
- The results of a complaint investigation;
- A contractor's refusal to allow a compliance evaluation or complaint
investigation to be conducted; or
- A contractor's refusal to provide information as required by the E.O.
and the regulations.
If a determination is made that the Executive Order has been violated,
and the violation has not been corrected through conciliation, the Deputy
Assistant Secretary for Labor-Management Programs may refer the matter to
the Solicitor of Labor for institution of administrative enforcement proceedings.
Q. What happens during the administrative enforcement
proceedings?
A. The proceedings will be conducted under the control and supervision
of the Solicitor of Labor, under the hearing procedures set forth in 29
CFR part 18, Rules of Practice and Procedure for Administrative Hearings
Before the Office of Administrative Law Judges. The administrative law judge
will certify his or her recommended decision to the Assistant Secretary
for Employment Standards. The parties may file exceptions to the decision
with the Assistant Secretary (and responses to the exceptions). The Assistant
Secretary may then issue a final administrative order or make such other
disposition of the matter as he or she finds appropriate. If the Assistant
Secretary determines that the contractor has violated E.O. 13201 or the
implementing regulations, the final administrative order will order the
contractor to cease and desist from the violations, require the contractor
to provide appropriate remedies, or impose appropriate sanctions and penalties,
or any combination thereof.
Q. What sanctions and penalties may be imposed
for noncompliance?
A. The Assistant Secretary may:
1. Direct a contracting
agency to cancel, terminate, suspend, or cause to be canceled, terminated
or suspended, any contract or any portions thereof, for failure of the contractor
to comply with its contractual provisions as required by section 2 of E.O.
13201 and the implementing regulations. Contracts may be canceled, terminated,
or suspended absolutely, or continuance of contracts may be conditioned
upon compliance.
2. Issue an order
of debarment under section 6(b) of the Order providing that one or more
contracting agencies must refrain from entering into further contracts,
or extensions or other modification of existing contracts, with any noncomplying
contractor.
Q. What procedures will the Department follow
in imposing such sanctions and penalties?
A. After a final decision on the merits has been issued and before imposing
the sanctions and penalties, the Assistant Secretary will consult with the
affected contracting agencies, and provide the heads of those agencies the
opportunity to respond and provide written objections.
If the contracting agency provides written objections, those objections
must include a complete statement of reasons for the objections, among which
reasons must be a finding that, as applicable, the completion of the contract,
or further contracts or extensions or modifications of existing contracts,
is essential to the agency's mission.
The sanctions and penalties will not be imposed if:
1. The head of the
contracting agency continues personally to object to the imposition of such
sanctions and penalties, or
2. The contractor
has not been afforded an opportunity for a hearing.
Q. Under what circumstances must a contractor
be provided the opportunity for a hearing?
A. A contractor must be given the opportunity for a hearing before the
Assistant Secretary:
1. Issues an order
debarring the contractor from further government contracts under section
6(b) of E.O. 13201 and section 470.14(d)(2) of the implementing regulations;
or
2. Includes the contractor
on a published list of noncomplying contractors under section 6(c) of the
Executive Order and section 470.14(f) of the implementing regulations.
Q. How can you learn which contractors have been
debarred?
A. Periodically, the Assistant Secretary will publish and distribute, or
cause to be published and distributed, to all executive agencies a list
of the names of contractors that have, in the judgment of the Assistant
Secretary, failed to comply with the provisions of E.O. 13201, or of related
rules, regulations, and orders of the Secretary of Labor, and as a result
have been declared ineligible for future contracts or subcontracts under
E.O. 13201.
Q. Under what circumstances can a contractor obtain
reinstatement?
A. Any contractor or subcontractor debarred from or declared ineligible
for further contracts or subcontracts under E.O. 13201 may request reinstatement
in a letter to the Assistant Secretary. If the Assistant Secretary finds
that the contractor or subcontractor has come into compliance with the Executive
Order and the implementing regulations and has shown that it will carry
out the Executive Order and the implementing regulations, the contractor
or subcontractor may be reinstated.
Q. What actions may the Assistant Secretary take
in the case of intimidation and interference?
A. The sanctions and penalties may be exercised by the Assistant Secretary
against any contractor or subcontractor who fails to take all necessary
steps to ensure that no person intimidates, threatens, or coerces any individual
for the purpose of interfering with the filing of a complaint, furnishing
information, or assisting or participating in any manner in a compliance
evaluation, complaint investigation, hearing, or any other activity related
to the administration of E.O. 13201.
Last Updated: 11/07/06
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