We’ve divided the question into three categories: coverage, posting requirements and contract clause requirements.  The Office of Labor-Management Standards (OLMS) is to be the first point of contact for compliance questions.  An audio recording of their presentation is available by dialing 800-333-1825.  It will be available until July 2nd.

Coverage under the regulations:

What is the effective date of the rule?

June 21, 2010.

If contracts pre-date June 21, 2010 do we have to comply?

No, those contracts are exempt.

Do the new regulations apply to contracts before the effective date?

The posting requirement only applies to government contracts and subcontracts resulting from solicitations after the final implementation of the rule – June 21, 2010.

On June 21 must all federal contractors start posting the notice or only after they receive a contract with the new clauses?

Only after receiving a contract, or subcontract, with the new clauses does the requirement to post go into effect.

Should we comply immediately or wait until the clause is in a new contract?

You can begin now, but the legal requirement won’t be in place until it is in your contract.

Are banks considered federal contractors for the new requirements since they are depositories of federal funds?

Yes – The regulatory definition of “government contract” would include banks based on two criteria: 1. Deposit insurance (FDIC) is a covered government contract.  2. The issuing and paying of bonds and serving as a federal fund depository also establish coverage.

Are non-union employers required to post the notice? Does the National Labor Relations Act (NLRA) apply to contractors without unions?

Yes, if the employer is a federal contractor or subcontractor, posting the notice is required whether or not their workforce is unionized.

If our employees are not covered by the NLRA must we comply with this rule?

No. For example, employees covered by the Railway Labor Act are exempted from this rule.

Do these regulations apply to the construction industry?

Yes.

Are public sector employers covered?

No. They are excluded in the regulations.

Our organization receives federal aid.  Are we covered?

Federal grants and loans are excluded from the definition of government contracts.  Accordingly, this rule does not establish coverage based on “federal financial assistance.”  For the regulatory definition of “federal financial assistance” see 29 CFR 31.2

Do the regulations apply to contractors doing state work with federal dollars?

It depends on the type of federal dollars.  Grants and loans are not covered, as they fall under “federal financial assistance.”  Dollars received through federal contracts are covered.

Does accepting Medicare constitute a federal contract and therefore put our company under the new requirements?

OFCCP gave a two part answer:  1.Parts A and B of Medicare do not constitute a federal contract.  2. TRICARE, Federal Employee Health Benefits (FEHB) and other parts of Medicare may create jurisdiction.

Must the requirements be flowed down to other subcontracts?

Yes, the requirements must be flowed down to subcontractors at all tiers.  Subcontracts below $10,000 are excluded.

If a state university has federal contracts must it post?

No. Public entities, including states and their subdivisions, are exempt from the NLRA and therefore also exempt from this rule.

We receive Federal Transit Administration (FTA) grant funding.  Do we need to follow these regulations?

No, this type of grant is federal financial assistance and not a federal contract.

As a private university receiving funds for research do we need to comply?

It depends on whether the funds are federal financial assistance (see 29 CFR 31.2) or from a contract. Federal financial assistance is not covered under these regulations.

Has the Federal Acquisition Regulation (FAR) council updated their regulations?

They are currently working on an interim final rule that is expected “shortly.” After it has passed, the new clauses will begin to be inserted in federal contracts.

If the contract is for work outside of the US is it covered under these regulations?

If contract is for work exclusively outside of the US there is no coverage. If part of the work is performed in the US the contract is covered.

Posting requirements:

Are there free copies of the poster?

Yes. Online copies suitable for printing can be found on the Office of Labor-Management Standards (OLMS) website.

Must the Executive 13201 notice (“Beck” poster) still be posted?

No, that Order and its regulations have been repealed by Executive Order 13496.

What constitutes “a significant number of the workforce” to require a translation other than English?

OFCCP recommended discussing the situation with OLMS if you suspect a translation may be required.  There is no specific number or percentage defined in the regulations.

When will posters in languages other than English be available?

Spanish and Mandarin Chinese language posters are expected shortly and will be available on the OLMS website. Other translations will be provided upon request.

If a union is in place, must we still post the notice?

Yes. Those employees are still covered by the NLRA and have rights under it of which they must now be notified with this poster.

If a majority of our company supports government contracts and there are other offices that don’t support these contracts, must the other offices post the notice if they don’t support the contract?

OFCCP answered this question with another question:  are the employees at the other locations engaged in activity related to the performance of the contract? See 29 CFR 471.2d 2 for a more detailed description of “contract-related activity.” The final rule contains examples that include repairers, security, financial, office and clerical personnel as employees contributing to the performance of the contract.  The test for “contract-related activity” is “very broad.”

Must we post the notice only at job sites or at our corporate office too?

Definitely at the job sites. You must post at the  corporate office too if employees there assist with the fulfillment of the contract.  Also,  if employees drop in at the corporate office for their paychecks, etc. you would need to post there.

Can we put the new poster just in the break room? If the break room isn’t enough, how many posters must be put up and where?

It is not sufficient to just post in the break room. The notice must be posted throughout the building in a conspicuous manner. There is no specific number of posters or places indicated. OFCCP wants you to remember that the goal is that employees are notified.

How does a contractor post so that a delivery employee gets a notice?

Maybe by time clock where they report or electronically.

How long must this notice stay posted?

The legal obligation to post lasts through the duration of the covered contract.

How do we get the notice to telecommuters?

If most of your communication with an employee is electronic, you must provide the notice electronically. The regulations require that the link to the notice read: “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.”

If we post some notices, but not government ones, electronically do we need to post this electronically?

OFCCP didn’t seem to answer the specific question but seemed to come down on the side that yes you would if you post any notices electronically.

If an employer has a company internet site, but only a few employees have computer access at the worksite would they need to post the notice online?

If they regularly post notices to employees on that site – yes.

We have a board where we post every other required notice. If we put this poster there is that enough?

No. This rule requires “widespread posting.” You should hang it at least where you would post the other posters, but need to post in a “widespread, conspicuous” manner throughout the rest of the building.

The poster is big.  Can I shrink it down to one 8.5 x11 page?

No. The poster has to be 11×17 or the two 8.5×11 sheets.

Contract clause requirements:

Do the required contract clauses need to be listed verbatim or can they be incorporated by reference?

The Executive Order 13496 regulations require the inclusion of several clauses in all covered federal contracts, subcontracts and purchase orders.  Part 471.2b of the regulations gives permission to include the clauses by reference to “29 CFR Part 471, Appendix A to Subpart A.”

Where are the required contract clauses found?

Appendix A of the new regulations. This section also contains the poster language.

We are a federal contractor, should we include this in contracts with suppliers?

Yes, unless their supplies or services are not necessary to the performance of the contract.

Is a purchase order considered a contract? Must subcontractors and sub-subcontractors comply with this rule?

Purchase orders are considered contracts under these regulations and therefore need to include the contract clauses.  All levels of subcontractors are covered by the regulations.

What is a prime contractor’s responsibility for ensuring subcontractor compliance?

If DOL realizes that a number of subcontractors are out of compliance, it may issue a measure requiring the prime contractor to takes steps to increase subcontractor compliance. If the prime contractor refuses to do so, sanctions may be applied.

OFCCP is not accepting any new requests to develop or to renew Functional Affirmative Action Program (FAAP) agreements at this time. The agency is currently reviewing its policies regarding the FAAP process. We will issue new guidance in the near future. Until such guidance is issued, contractors without FAAP agreements should continue to develop and maintain establishment-based AAPs. Contractors with approved FAAP agreements should maintain their functional unit AAPs and operate under their current FAAP agreement. If significant changes occur in the normal order of business for contractors with existing FAAP agreements, such as mergers, acquisitions, divestures, and recent changes, these should be reported to the FAAP Director for appropriate actions, as per the agreement. OFCCP will notify contractors when new guidance is published.

New Employee Notification Requirements for Federal Contractors and Subcontractors:

OFCCP Will Present Webinar on Compliance Fundamentals

Under a new Department of Labor regulation to be published tomorrow, beginning on June 19, 2010 Federal contractors and their subcontractors are required to post notices informing employees of their rights under the National Labor Relations Act (NLRA).  On June 3, 2010, Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will present a webinar for Federal contractors and subcontractors to provide them with information about how to comply with this new regulation.  For more information about the webinar subscribe to OFCCP’s E-mail updates at http://www.dol.gov/OFCCP/.

These regulations implement Executive Order 13496, signed by President Obama on January 30, 2009, and require federal contractors to agree to post the required employee notice and to agree to insert provisions in their subcontracts that require their subcontractors to post the employee notice as well.  The employee notice that must be posted and the contract provisions that must be inserted into Federal contracts and subcontracts can be found at 29 C.F.R. Part 471 Appendix A.

The notice to employees, required by the new regulation, informs employees about their rights under the NLRA to form, join and assist a union, and to bargain collectively with their employer.  The notice provides examples of unlawful employer and union conduct that interferes with those rights and indicates how employees can contact the National Labor Relations Board, the Federal agency that enforces those rights, with questions or to file complaints.  Contractors that violate the Labor Department’s regulations requiring employee notification of these rights may be subject to sanctions, including suspension or cancelation of the contract.

Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees who are covered by the NLRA and who engage in contract-related activity.  In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted.  Contractors and subcontractors who post notices to employees electronically must also post the required notice electronically, which requires posting a link to the Department of Labor’s website containing the employee notice where they customarily place other electronic notices to employees about their jobs.  Where a significant portion of contractor’s workforce is not proficient in English, contractors and subcontractors must provide the employee notice in languages spoken by employees, and the Department will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.

Contractors and subcontractors may obtain the required poster in any of three ways.  The Labor Department will print posters and provide them to Federal contracting departments and agencies for supply to contractors and subcontractors.  Contractors and subcontractors can request posters from the Labor Department’s Office of Labor-Management Standards and OFCCP field offices, and contractors and subcontractors can download the poster from http://www.olms.dol.gov.

Chicago, IL:

February 4, Union League Club, 10AM to 12PM/2PM to 4PM
February 5, Metcalfe Federal Building, 10AM to 12PM/2PM to 4PM

San Francisco, CA:

February 16, San Francisco Federal Building, 10AM to 12PM/2PM to 4PM
February 17, San Francisco Public Library, 10AM to 12PM/2PM to 4PM

New Orleans, LA:

March 17, Lindy Boggs Conference Center, 10AM to 12PM/2PM to 4PM
March 18, Lindy Boggs Conference Center, 10AM to 12PM/2PM to 4PM

Click here for more information.

“all compliance evaluations shall include a review of the contractor’s online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans.”

Contractors should evaluate their web-based application systems to ensure that they are as accessible as possible.  Best practices for complying with this directive include posting instructions on how applicants may request a reasonable accommodation and increasing the interoperability of online application systems.

Under the ADA, Section 503 of the Rehabilitation Act of 1973 and VEVRAA, contractors are required  to ensure equal opportunity to individuals with disabilities by making reasonable accommodations during the application process.  Providing notice of how to request such an accommodation near the beginning of your online application system is a common way to address this concern.  An OFCCP compliance officer provided this sample statement that could be used to help comply with the directive:

“If you are an individual with a disability and require a reasonable accommodation to complete any part of the application process, or are limited in the ability or unable to access or use this online application process and need an alternative method for applying, you may contact [phone number] or [e-mail address] for assistance.”

If you are using a phone number as part of the accommodation process, ensure that its mailbox is being checked regularly – OFCCP is checking for “full mailbox” messages.

According to OFCCP, “interoperability is the ability of a computer system to effectively interact and communicate when an applicant with a disability is using assistive technology/adaptive software and adaptive strategies” to interact with the contractor’s application system.   Information on increasing the interoperability of your application system can be found at ODEP’s website or on the website for the Job Accommodation Network.   Interoperability is a big part of the solution, but does not exempt contractors from the requirement to make other reasonable accommodations.

Evaluating the effectiveness of your accommodation efforts is an important part of your Affirmative Action and Equal Employment Opportunity efforts.