HR Policy Association urged the U.S. Department of Agriculture (USDA) to grant a 90-day extension of the comment period on a blacklisting proposal that could set a precedent for other efforts to impose such requirements on an agency-by-agency basis. The current comment period is scheduled to close on March 21.
As previously reported, a recent USDA Notice of Proposed Rulemaking revives and expands the Obama administration’s “blacklisting rule” requiring federal contractors to disclose violations of certain labor and employment laws, and certify compliance with labor laws during the term of the contract.
The two new blacklisting clauses in the proposed rulemaking require contractors to certify the following:
- Compliance with 15 specified labor laws, and state equivalents, and report to the contracting officer any future adjudications of noncompliance. Contractors must also certify, to the best of their knowledge, that their subcontractors and suppliers are in compliance with the specified laws. Under the clause, these certifications may increase False Claims Act liability if untrue.
- Compliance with all previously required corrective actions for adjudicated labor law violations by the contractor and any subcontractors, and to provide a list of any such violations prior to being awarded a contract.
Employers would be required to certify compliance with: The Fair Labor Standards Act, Occupational Safety and Health Act, National Labor Relations Act, Service Contract Act, Davis-Bacon Act, Title VII of the Civil Rights Act, Americans with Disabilities Act, Age Discrimination in Employment Act, and Family and Medical Leave Act, among others.
Background: This proposal is similar to the Obama administration’s efforts to impose a similar certification requirement across federal contracting agencies. On July 31, 2014, then-President Obama issued Executive Order 13673 requiring contractors to disclose alleged labor law violations in connection with contracting proposals, ostensibly for the purpose of assisting agencies in their “responsible source” determination. However, the Executive Order’s implementation was enjoined by a federal judge in October 2016. Congress then repealed the implementing regulations on March 27, 2017, using a procedure that barred the FAR Council from issuing a similar rule without Congress’s affirmative approval.
Outlook: Given the history of the Obama administration’s similar blacklisting rule, expect legal challenges if the USDA rule is eventually finalized.