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Understanding the Fair Pay and Safe Workplaces Executive Order, Part 2

Part one in this blog post series provided an overview of President Obama’s Executive Order 13673, titled “Fair Pay and Safe Workplaces” and its scheme to judge federal contractors’ eligibility for contract awards in excess of $500,000 by their self-reported records of compliance with fourteen federal labor laws and their State counterparts. Specifically, contractors must self-report applicable “Administrative Merits Determinations”, “Civil Judgments” and “Arbitral Awards or Decisions,” then be judged on whether this self-reported history should count against their contract bids. This Part 2 will now focus on the U.S. Department of Labor (“DOL”) guidance on the definitions of these critical terms and its somewhat foggy window into how they may affect contract awards.

DOL’s definition of self-reportable “Administrative Merits Determinations” focuses on any enforcement agency determination that any of the fourteen labor laws may have been violated. The enforcement agencies are DOL’s Wage and Hour Division, OSHA, OFCCP, EEOC and NLRB. “Administrative Merits Determinations” include both actual administrative adjudications of labor law violations and any of these agencies completing an investigation with a determination that a labor law violation may have occurred. Significantly, DOL thus sets the threshold for self-reporting, and for what might be considered in procurement, at essentially preliminary agency determinations. A specific, detailed list of such agency determinations that must be self-reported is in the guidance.

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