As for the current activity on the Order, the recently proposed guidance and regulations would require federal contractors and subcontractors, prior to being awarded a federal contract, to report any administrative merits decision, arbitral award or decision, or civil judgments occurring within the preceding three years. In addition, they must report on an ongoing basis thereafter at six-month intervals for the duration of the federal contract. Further, under the proposed guidance and rules, the contracting officer and a designated Labor Compliance Officer may disqualify potential contractors and cancel a federal contract or require a contractor to enter into a compliance agreement where violations are deemed serious, repeated, willful, or pervasive. The 106-page DOL guidance seeks to define a violation and what types of circumstances would make a violation serious, repeated, willful, or pervasive. It also explains how federal contracting agencies should analyze violations and any information the contractor submits to determine whether to award or deny contracts. The DOL guidance explains that [u]ltimately, each contractors disclosed violations of Labor Laws will be assessed on a case-by-case basis in light of the totality of the circumstances, including the severity of the violation or violations, the size of the contractor, and any mitigating factors. The DOL guidance also notes that, in most cases, a single violation will not disqualify a potential contractor. The appendices to the guidance provides numerous helpful examples of serious, willful, repeated, and willful violations, violations of particular concern, and mitigating factors.
Julie Giddings focuses her practice on the areas of employment and higher education law. She regularly advises employers on a diverse range of employment law issues, including discrimination, retaliation and harassment issues ...
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