USDA Proposed Rule for Federal Contractors to Certify Labor Law Compliance
By Corey Bartkus
On February 17, 2022, the Federal Register published a proposed rule by the U.S. Department of Agriculture (“USDA”) that would require federal contractors to certify their labor law compliance.[1] The proposed rule would apply to all solicitations and contracts that exceed the simplified acquisition threshold, which is currently $250,000.[2]
Under the proposed rule, federal contractors would be required to certify that they are in compliance with 15 specific federal laws and executive orders that establish worker protections: The Fair Labor Standards Act; The Occupational Safety and Health Act; The Migrant and Seasonal Agricultural Workers Protection Act; The National Labor Relations Act; The Davis-Bacon Act; The Service Contract Act; Executive Order 11246 (Equal Employment Opportunity); Section 503 of the Rehabilitation Act of 1973; The Vietnam Era Veterans’ Readjustment Assistance Act; The Family and Medical Leave Act; Title VII of the Civil Rights Act of 1964; The Americans with Disabilities Act of 1990; The Age Discrimination in Employment Act of 1967; Executive Order 13658 (Establishing a Minimum Wage for Contractors); Equivalent State laws, as defined by the Secretary of Labor in guidance; and Executive Order 13627 (Strengthening Protections Against Trafficking in Persons in Federal Contracts).[3]
Contractors would also be required to certify their subcontractors and suppliers’ compliance, as well as disclose previous issues and future adjudications of noncompliance if any arise.[4]
The current deadline for comments on the proposed rule is March 21, 2022.[5]
The Takeaway:
This current proposal follows an unsuccessful effort by President Obama in 2014 under The Fair Pay and Safe Workplaces Executive Order to adopt governmentwide regulations that would require contractors to self-certify their compliance with labor laws.[6] The Executive Order was blocked by a federal judge in Texas in October 2016 after the judge found that the process for requiring disclosures and disqualifying contractors violated the First Amendment by compelling speech and violated due process.[7]
Campbell Litigation, P.C. will be closely monitoring the proposed rule for federal contractors as it proceeds through the rulemaking process. Reach out to the attorneys at Campbell Litigation to ensure that your business stays compliant with all employment laws and regulations.
[1] https://www.govinfo.gov/content/pkg/FR-2022-02-17/pdf/2022-01751.pdf
[2] https://www.fns.usda.gov/cn/federal-micro-purchase-and-simplified-acquisition-thresholds#:~:text=Federal%20micro%2Dpurchase%20threshold%20%2D%20increased,increased%20from%20%24150%2C000%20to%20%24250%2C000.
[3] https://www.govinfo.gov/content/pkg/FR-2022-02-17/pdf/2022-01751.pdf
[4] Id.
[5] https://www.govinfo.gov/content/pkg/FR-2022-02-17/pdf/2022-01751.pdf
[6] https://obamawhitehouse.archives.gov/the-press-office/2014/07/31/executive-order-fair-pay-and-safe-workplaces
[7] Associated Builders and Contractors of Southeast Texas et al. vs. Anne Rung, Memorandum and Order Granting Preliminary Injunction, Civil Action No. 1:16-CV-425, United States District Court, Eastern District of Texas, October 24, 2016