Earlier this year, the final rule and guidance regarding President Obama’s controversial Fair Pay and Safe Workplaces (also known as the “Blacklisting”) executive order — which requires companies and organizations seeking government contracts in amounts of $500,000 or more to disclose past alleged violations of federal and state labor and employment laws — was sent to the Office of Management and Budget for review and approval. This action means that the final rule is currently on track for publication, possibly as soon as August 2016, and is likely to be implemented before the end of the year, absent intervention from the legislature or judiciary.

In preparation for the eventual implementation of the executive order, on July 1, 2016, the National Labor Relations Board (NLRB) published a memorandum describing what steps it will take to report on alleged unfair labor practices. Specifically, the NLRB has identified data in its case management system, which will be forwarded to a federal database as part of the violation reporting process.

In addition, the NLRB has developed a new form, which it will use to collect certain information from employers who are the subject of unfair labor practice complaints issued on or after July 1. The form will be used to solicit information about whether an employer is or has been a federal contractor and to gather identifying numbers such as the employer’s Commercial and Government Entity (CAGE) number, Data Universal Number System (DUNS) number, Employer Identification Number (EIN), and Taxpayer Identification Number (TIN).

The NLRB’s memorandum also includes an attached template email for regional offices to send to an employer after they have reached a determination regarding the merits of an unfair labor practice charge against the employer, and have decided to issue a complaint “absent prompt settlement.” The email indicates that certain data will be forwarded to a federal Labor Compliance Advisor for a determination regarding whether the employer’s labor and employment violations disqualify the employer from obtaining federal contracts. The email further notes that, if the employer settles the matter before the region issues a complaint, no data will be forwarded by the NLRB.

Finally, the email cautions employers that if a complaint is issued and the employer has not provided the information requested in its new form, the NLRB will send any information that it does have about the case, as well as a notification regarding the employer’s failure to provide the requested form information, to the Labor Compliance Advisor for consideration regarding contracting eligibility.

Given that federal agencies are starting to take steps to implement the Fair Pay and Safe Workplaces executive order, employers should anticipate publication of a final rule in the near future and should take steps now to ensure compliance with all labor and employment laws identified in the order, as well as future reporting requirements.

Article by Carmen N. Couden of Foley & Lardner