Department of Labor Directive Expands Impact of New Labor Rights Posting Requirements For Federal Contractors

By Robert Fried

As we previously reported here, by Executive Order 13496, the Obama administration revoked Executive Order 13201 issued by the Bush administration requiring that providers of goods or services to the executive branch to post a Beck notice informing employees of their rights to not join a union and their right to not pay agency fees associated with the political and other non-representation activities of a union (the so-called "Beck" rule based on a US Supreme Court decision of the same name).  


As required by Executive Order 13496, on May 20, 2010, the Department of Labor (DOL) issued a final rule effective June 21, 2010, requiring federal contractors with prime contracts over $100,000 and federal subcontractors with subcontracts over $10,000 to instead post notices informing employees of certain rights under the National Labor Relations Act (NLRA). Specifically, affected employers are now required to post a notice informing employees of their rights under the NLRA to form a union, to join a union, to support a union; provides examples of conduct by employers and conduct by unions that interferes with those rights; and states how employees can contact the National Labor Relations Board (NLRB) to ask questions or to file complaints.

While new posting notice requirements might not in themselves reflect a fundamental change in the balance of rights and risks in the workplace, additional new rules issued as a directive without formal rule making by the Office of Federal Contract Compliance (OFCCP) do suggest a shift in enforcement practice at the federal level that requires close attention to the extent it marks the beginning of a far more active inter-agency coordinated enforcement driven approach on labor issues.

The new June 15, 2010 OFCCP directive provides that federal compliance officers on federal contracts, Davis-Bacon, and other American Recovery and Reinvestment Act of 2009 stimulus projects will inspect work sites for compliance with the new posting requirements as well as inspecting contractual language for compliance language.  Because compliance enforcement is intended to be shared, at first with the Office of Labor Management Standards (OLMS), the directive marks a  new and untested era of inter-agency enforcement and information sharing. While no specific enforcement sharing with the NLRB has yet been formally announced, such a functional extension of coordination is possible and with it the use of the unfair labor practice provisions of the Act.  This means notice posting will play a role in future organizing campaigns

Effective June 21, 2010, Federal Contractors Are Required To Post Notices Informing Employees Of National Labor Relations Act Rights

By Jonathan Judge

On May 20, 2010, the Department of Labor ("DOL") issued a final rule requiring federal contractors with prime contracts over $100,000 and federal subcontractors with subcontracts over $10,000 to post notices informing employees of certain rights under the National Labor Relations Act ("NLRA"). This new requirement takes effect June 21, 2010.

The required notice identifies employees' rights under the NLRA to form a union, to join a union, to support a union; provides examples of conduct by employers and conduct by unions that interferes with those rights; and states how employees can contact the National Labor Relations Board to ask questions or to file complaints.

Contractors and subcontractors subject to the new rule must post the required notice in the workplace so that it is prominent and can be readily seen by employees. Specifically, the required notice must be posted where other similar required notices are posted.

Although electronic posting cannot be used in place of physical posting, contractors and subcontractors that customarily also post electronically required employee notices must also post electronically the NLRA rights notice via a link to the Office of Labor-Management Standards ("OLMS") website. The link to the OLMS website must state: "Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers." Employers that post the notice electronically, must place the required link to the notice where the employer customarily places similar required notices, and the link to the OLMS website must be no less prominent than other notices.

Posters can be downloaded in two formats: (1) a 11x17-in one-page poster or (2) a 11x8.5-inch two-page poster.

If a significant portion of an employer's workforce is not proficient in the English language, the employer must post the required notice in the language or languages the employees speak. The OLMS states it will provide translations of the required notice.

Employers who violate the posting regulations will be subject to sanctions for non-compliance. The potential sanctions include: suspension or cancellation of an existing contract, debarment from future Federal contracts or subcontracts, and placement on a list of contractors and subcontractors declared ineligible for future contracts. The Director of the OLMS will distribute that list to all Federal executive agencies.

This new rule implements Executive Order 13496 President Obama signed on January 28, 2009, and represents a 180 degree departure from Executive Order 13201 President Bush signed on February 21, 2001. Executive Order 13201 issued by President Bush required providers of goods or services to the executive branch to post a Beck notice informing employees of their rights to not join a union and their right to not pay agency fees associated with the political and other non-representation activities of a union. Executive Order 13496 issued by President Obama revoked Executive Order 13201 issued by President Bush, and employers are no longer required to post a Beck notice.