More Federally Mandated Wallpaper: Federal contractors must post a notice of employee rights under the National Labor Relations Act
Once again, employers are being given an old line: we are from the federal government and we’re here to help you . . . with your office decorating. Shortly after his inauguration, President Obama issued Executive Order 13496 (the “Order”). The Order directed that all federal contractors post a notice to their employees advising the employees of their rights under the federal labor laws. The Order required the United States Department of Labor to prepare implementing regulations, including the text of the posting. After a year’s work, the Department has completed its work, and the required poster is now available. Federal contractors and all subcontractors must begin posting the required notice by June 19, 2010.
Posting requirements are not new for federal contractors. In the 1980s, the first President Bush required contractors to post a notice advising employees of their rights to refrain from supporting unions’ political activities (the so-called “Beck” notices named after the U.S. Supreme Court case addressing the issue). President Clinton issued an executive order rescinding the Beck poster requirement; the second President Bush then reinstated the posting obligation. No surprise – in the Order President Obama again rescinds the obligation to post the Beck notice.
The new poster is available from the Department of Labor’s website here. The poster generally advises employees about their rights to engage in protected concerted activity under the National Labor Relations Act, as well as their right to refrain from engaging in that activity. The poster also describes the industries and employees that are not subject to the NLRA. Generally, the poster does a fair job of describing employee rights, and unlawful actions by both employers and unions. Of course, a single 11-inch by 17-inch poster cannot describe all of the complexities that have developed in the 75 years of NLRA enforcement. For example, health care employers should note that the poster does not even attempt to address the special rules applicable to various union activities in patient care areas.
The obligation to post the notice applies to all federal contracts that are above the “simplified acquisition threshold” applicable to federal contracts. Generally, the simplified acquisition rules are applicable to contracts with a total value less than $100,000. These provisions of the federal acquisition regulations are sometimes complex, and employers with questions as to their coverage should consult their attorney.
Federal contractors are required to include a contract provision requiring posting of the notice in all subcontracts, with a value of more than $10,000. Thankfully, in the final regulations the Department backed off its original proposal that subcontracts had to include the full text of the poster; now contractors can satisfy their obligations in this regard by incorporating the regulation by reference. Contractors should note that among the requirements of the contract clause is the obligation for subcontractors to include the provision in their contracts with their subcontractors; the Department’s regulations thus expressly require all businesses performing work on the federal contract to post the notice, regardless of their subcontract “tier” or whether the subcontract might itself be under the simplified acquisition threshold.
The poster must be physically displayed in the normal “conspicuous places” other employment related posters are located. The notice must be posted at all locations on which work on the federal contract is performed or is being allocated to the federal contract. When a substantial portion of the workforce does not speak English, the notice must be posted in the language spoken by those employees. When the employer routinely provides employees notices by electronic means, the employer must do so in this instance as well, typically by providing a link to the Department of Labor website.
What is a federal contractor or subcontractor to do?
For federal contractors or subcontractors that are already ubiquitously unionized, the poster may not cause any substantial headaches. Indeed, reminding unionized employees that there are certain things their union cannot do, as the poster plainly does, may not be a bad thing. For federal contractors or subcontractors that are not currently unionized, however, substantial issues are raised – especially if the employer wants to remain union-free. The new poster may raise employees’ awareness of their rights under the NLRA. It should also raise union-free employers’ attention to a systematic union avoidance program:
- Nothing in the Executive Order or the Department’s regulations prevents an employer from posting its own notice, right alongside the newly required poster.
- Employers should remind employees that it is official company policy that the employer does not believe a union is necessary or appropriate.
- The employer should remind employees of the advantages they enjoy by being union-free.
- If the company has not reviewed its nonsolicitation and nondistribution policy, it should be reviewed promptly to make sure that all of its provisions are in compliance with the law. If the company does not have a nonsolicitation and nondistribution policy – implement one!
- Make sure that your nonsolicitation and nondistribution policy, and any other policies or practices that might impact employees or others engaging in union organizing, are applied in a fair and nondiscriminatory fashion.
Of course, before undertaking any these actions, federal contractors or subcontractors should consult with their labor law attorney.
Another Day, Another E-Verify Delay
It seems like just a couple days ago that we reported that implementation of the E-Verify System was delayed until June 30. Actually, it was a couple days ago. Well, you can forget that; the The Department of Homeland Security’s Citizenship and Immigration Service (USCIS) has announced that it will delay mandatory use of E-Verify, this time until September 8, 2009. Click here to read the USCIS's press release on the delay.
Why the delay? For once, it's okay to blame the lawyers: the parties in a lawsuit over the legality of E-Verify, Chamber of Commerce of the United States of America, et al. v. Napolitano, agreed to delay implementation of the rule from June 30 until September 8 to give the Obama administration more time to review the case and determine its position. Initially, federal contractors were supposed to start using E-Verify on January 15, but the rule has been postponed, and postponed, and postponed again. Keep watching the Stoel Rives World of Employment's continuing e-verify coverage to see if the new September 8 date will stick, or whether there will be more delays.
E-Verify Delayed Yet Again!
Still another delay for implementation of the mandatory E-Verify system for federal contractors. The Department of Homeland Security’s Citizenship and Immigration Service (USCIS) announced for a third time that it will delay mandatory use of E-Verify, this time until June 30, 2009. Click here to read the USCIS's press release on the delay. Click here for the Stoel Rives World of Employment's continuing e-verify coverage.
Business Groups Sue to Block E-Verify Rule
The Society for Human Resource Management, the U.S. Chamber of Commerce, and three other groups filed a lawsuit late last month challenging the legality of an executive order that requires federal contractors to use E-Verify, the federal government's Web-based system that uses Social Security files to ensure that employees are legal immigrants or citizens eligible to work in the United States. Click here to read a copy of the complaint: Chamber of Commerce of the United States of Am. v. Chertoff, D. Md., No. 8:08-cv-03444-AW (12/23/08).
President Bush signed an executive order in June that made E-Verify mandatory starting January 15, 2009 for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. The lawsuit seeks an injunction against the January 15 implementation of the executive order.
According to SHRM's press release, the system isn't ready for widespread use and would place an unreasonable burden on employers. “This massive expansion of E-Verify is not only bad policy, it’s unlawful,” according to a U.S. Chamber of Commerce's press release. “The Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce.”
The Stoel Rives World of Employment will be watching this lawsuit, and we'll post updates as they occur. For now, it's safest to assume that the order will take effect January 15 and that contractors will be required to use the system. If that changes, we'll let you know.
