DOD, GSA and NASA Issue Final Rule Requiring Posting of Employee Rights Under the NLRA

Alerts / November 29, 2011

In 2009, President Obama signed Executive Order 13496, mandating that certain Federal departments and agencies require government contractors (and their subcontractors) to post notices of employee rights. Failure by contractors to comply with the posting requirements would subject their contracts to cancellation, termination or suspension, and the contractors could be declared ineligible for further government contracts.[1]

Please note that this posting requirement is different from the posting requirement announced by the National Labor Relations Board (NLRB) and which has been deferred until January 2012. Employers who are subject to the FAR should consult with legal counsel to ensure compliance with the final rule.

Executive Order 13496 directed the Secretary of Labor to adopt implementing regulations. These regulations, adopted as final effective June 21, 2010, require the posting of employee rights under the National Labor Relations Act (NLRA), using a poster prepared by the Department of Labor (DOL) for this purpose.[2]

On December 13, 2010, the Department of Defense (DOD), the General Services Administration (GSA) and the National Aeronautics and Space Administration (NASA) published an interim rule (the Interim Rule) following the DOL's requirement. On October 21, 2011, after the close of the comment period, the DOD, GSA and NASA announced that the interim rule will become final, without changes, effective December 13, 2011.[3]

The Interim Rule required contractors to post the notice of employee rights "in conspicuous places in and about the Contractor's plants and offices," to ensure that the notice "is prominent and readily seen" by employees who are protected by the NLRA and who "engage in activities related to the performance of the contract." If a contractor "customarily" uses electronic means to provide notices to its employees, the contractor must post on any website it uses for this purpose a link to the DOL's website that contains the poster under the heading "Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers."

Contracts that are under the simplified acquisition threshold or for work performed exclusively outside the United States are exempt from the final rule, as are subcontracts of $10,000 or less. However, contractors must include a clause with the posting requirement for each subcontract that exceeds $10,000 and that will be performed in the United States in whole or in part. The Secretary of Labor may direct the contractor to enforce the posting requirement against a non-compliant subcontractor, and the contractor may ask the Secretary to participate in any litigation or threatened litigation that results from such a directive.

If you have any questions about the material presented in this alert or how it may impact your business, please contact any member of Baker Hostetler's Labor Relations Practice.

Authorship Credit: Ellen J. Shadur

[1] Executive Order 13496 dated January 30, 2009, Section 2, requires all contracts, other than those specifically exempted by the Secretary of Labor to include a clause requiring the posting of employee rights "of such size and in such form, and containing such content as the Secretary of Labor shall prescribe."
[2] 75 FR 28368 (May 20, 2010).
[3] The rule will be implemented through amendments to the Federal Acquisition Regulation (FAR). The specific changes may be found at 48 CFR Parts 1, 2, 22 and 52.

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