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Thursday, May 20, 2010

US Labor Department Publishes Rule Requiring Posting of Employee Organizing Rights (EO 13496)

By Tommy Eden

The U.S. Department of Labor will publish a final rule in the May 20th edition of the Federal Register requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act.

Federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces. The notice lists employees' rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or complaints. The rule implements provisions of Executive Order13496, which was signed by President Barack Obama on Jan. 30, 2009. The requirement for posting this employee notice must be included in every covered federal contract and subcontract.

Under the rule, employees will have the right to file complaints with the Department of Labor about contractors that do not comply with the prescribed requirements. Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract. Two Labor Department agencies, OLMS and the Office of Federal Contract Compliance Programs, are responsible for administering and enforcing the rule's requirements. For more information, visit the OLMS website at where you may view the 152-page Final Rule and a variety of compliance resources.

While the Rule is effective June 19, 2010, an otherwise covered entity is not bound to post the mandated notice ( until the entity signs a new Federal contract, subcontract or modification mandating compliance with the Executive Order. The size of the poster must be 11x17 inches or larger or two 11x8.5-inch landscape pages that must be taped or pasted together to form the 11x17 inch poster.

Significant Provisions of Final Rule EO 13496

Exceptions to Posting Requirements - The posting requirements do not apply to prime contracts under the Simplified Acquisition Threshold, which is currently set at $100,000, and do not apply to subcontracts below $10,000.

Obtaining the Required Posters - Contractors and subcontractors can acquire the poster from: (1) the Federal contracting departments and agencies; (2) the Department of Labor’s Office of Labor-Management Standards (OLMS) at (202) 693-0123 or; or (3) field offices of the Department of Labor’s OLMS or Office of Federal Contract Compliance Programs (OFCCP).

Physical and Electronic Posting -Contractors and subcontractors must post the employee notice conspicuously in and around their plants and offices so that it is prominent and readily seen by employees. In particular, contractors and subcontractors must post the notice where other notices to employees about their jobs are posted. Additionally, contractors and subcontractors who post notices to employees electronically must also post the required notice electronically via a link to the OLMS website. When posting electronically, the link to the notice must be placed where the contractor customarily places other electronic notices to employees about their jobs. The link can be no less prominent than other employee notices. Electronic posting cannot be used as a substitute for physical posting.

Acquiring Translated Posters -Where a significant portion of a contractor's or subcontractor’s workforce is not proficient in English, they must provide the employee notice in languages spoken by employees. OLMS will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements.

Investigations and Sanctions for Non-Compliance -OFCCP may conduct evaluations to determine compliance. Contractors who violate the regulations may be subject to sanctions for non-compliance, including suspension or cancellation of an existing contract; debarment from future Federal contracts and subcontracts; and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions. The National Labor Relations Board has exclusive jurisdiction to adjudicate disputes arising from alleged violations of the mandated notice.

Common Sense Counsel: if you are a federal contractor of any description (bank, credit union, sell to the federal government, receive federal funding, etc) falling under this Obama Administration payback initiative to Big Labor, you are highly encouraged to review the regulations and be prepared to post the notice on June 19, 2010. We will be providing additional recommended guidance in the next 2 weeks.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at