Presidential DocumentExecutive Order 136732014-18561
Fair Pay and Safe Workplaces
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 5, 2014
Signed
July 31, 2014
Issuing agencies
Executive Office of the President
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<title>Federal Register, Volume 79 Issue 150 (Tuesday, August 5, 2014)</title>
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[Federal Register Volume 79, Number 150 (Tuesday, August 5, 2014)]
[Presidential Documents]
[Pages 45309-45315]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2014-18561]
Presidential Documents
Federal Register / Vol. 79, No. 150 / Tuesday, August 5, 2014 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 45309]]
Executive Order 13673 of July 31, 2014
Fair Pay and Safe Workplaces
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including 40 U.S.C. 121, and in order to
promote economy and efficiency in procurement by
contracting with responsible sources who comply with
labor laws, it is hereby ordered as follows:
Section 1. Policy. This order seeks to increase
efficiency and cost savings in the work performed by
parties who contract with the Federal Government by
ensuring that they understand and comply with labor
laws. Labor laws are designed to promote safe, healthy,
fair, and effective workplaces. Contractors that
consistently adhere to labor laws are more likely to
have workplace practices that enhance productivity and
increase the likelihood of timely, predictable, and
satisfactory delivery of goods and services to the
Federal Government. Helping executive departments and
agencies (agencies) to identify and work with
contractors with track records of compliance will
reduce execution delays and avoid distractions and
complications that arise from contracting with
contractors with track records of noncompliance.
Sec. 2. Compliance with Labor Laws. (a) Pre-award
Actions. (i) For procurement contracts for goods and
services, including construction, where the estimated
value of the supplies acquired and services required
exceeds $500,000, each agency shall ensure that
provisions in solicitations require that the offeror
represent, to the best of the offeror's knowledge and
belief, whether there has been any administrative
merits determination, arbitral award or decision, or
civil judgment, as defined in guidance issued by the
Department of Labor, rendered against the offeror
within the preceding 3-year period for violations of
any of the following labor laws and Executive Orders
(labor laws):
(A) the Fair Labor Standards Act;
(B) the Occupational Safety and Health Act of 1970;
(C) the Migrant and Seasonal Agricultural Worker Protection Act;
(D) the National Labor Relations Act;
(E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon
Act;
(F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
(G) Executive Order 11246 of September 24, 1965 (Equal Employment
Opportunity);
(H) section 503 of the Rehabilitation Act of 1973;
(I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the
Vietnam Era Veterans' Readjustment Assistance Act of 1974;
(J) the Family and Medical Leave Act;
(K) title VII of the Civil Rights Act of 1964;
(L) the Americans with Disabilities Act of 1990;
(M) the Age Discrimination in Employment Act of 1967;
(N) Executive Order 13658 of February 12, 2014 (Establishing a Minimum
Wage for Contractors); or
[[Page 45310]]
(O) equivalent State laws, as defined in guidance issued by the
Department of Labor.
(ii) A contracting officer, prior to making an award, shall, as part of the
responsibility determination, provide an offeror with a disclosure pursuant
to section 2(a)(i) of this order an opportunity to disclose any steps taken
to correct the violations of or improve compliance with the labor laws
listed in paragraph (i) of this subsection, including any agreements
entered into with an enforcement agency. The agency's Labor Compliance
Advisor, as defined in section 3 of this order, in consultation with
relevant enforcement agencies, shall advise the contracting officer whether
agreements are in place or are otherwise needed to address appropriate
remedial measures, compliance assistance, steps to resolve issues to avoid
further violations, or other related matters.
(iii) In consultation with the agency's Labor Compliance Advisor,
contracting officers shall consider the information provided pursuant to
paragraphs (i) and (ii) of this subsection in determining whether an
offeror is a responsible source that has a satisfactory record of integrity
and business ethics, after reviewing the guidelines set forth by the
Department of Labor and consistent with any final rules issued by the
Federal Acquisition Regulatory (FAR) Council pursuant to section 4 of this
order.
(iv) For any subcontract where the estimated value of the supplies acquired
and services required exceeds $500,000 and that is not for commercially
available off-the-shelf items, a contracting officer shall require that, at
the time of execution of the contract, a contractor represents to the
contracting agency that the contractor:
(A) will require each subcontractor to disclose any administrative merits
determination, arbitral award or decision, or civil judgment rendered
against the subcontractor within the preceding 3-year period for violations
of any of the requirements of the labor laws listed in paragraph (i) of
this subsection, and update the information every 6 months; and
(B) before awarding a subcontract, will consider the information
submitted by the subcontractor pursuant to subparagraph (A) of this
paragraph in determining whether a subcontractor is a responsible source
that has a satisfactory record of integrity and business ethics, except for
subcontracts that are awarded or become effective within 5 days of contract
execution, in which case the information may be reviewed within 30 days of
subcontract award.
(v) A contracting officer shall require that a contractor incorporate into
subcontracts covered by paragraph (iv) of this subsection a requirement
that the subcontractor disclose to the contractor any administrative merits
determination, arbitral award or decision, or civil judgment rendered
against the subcontractor within the preceding 3-year period for violations
of any of the requirements of the labor laws listed in paragraph (i) of
this subsection.
(vi) A contracting officer, Labor Compliance Advisor, and the Department of
Labor (or other relevant enforcement agency) shall be available, as
appropriate, for consultation with a contractor to assist in evaluating the
information on labor compliance submitted by a subcontractor pursuant to
paragraph (v) of this subsection.
(vii) As appropriate, contracting officers in consultation with the Labor
Compliance Advisor shall refer matters related to information provided
pursuant to paragraphs (i) and (iv) of this subsection to the agency
suspending and debarring official in accordance with agency procedures.
(b) Post-award Actions. (i) During the performance
of the contract, each agency shall require that every 6
months contractors subject to this order update the
information provided pursuant to subsection (a)(i) of
this section and obtain the information required
pursuant to subsection (a)(v) of this section for
covered subcontracts.
[[Page 45311]]
(ii) If information regarding violations of labor laws is brought to the
attention of a contracting officer pursuant to paragraph (i) of this
subsection, or similar information is obtained through other sources, a
contracting officer shall consider whether action is necessary in
consultation with the agency's Labor Compliance Advisor. Such action may
include agreements requiring appropriate remedial measures, compliance
assistance, and resolving issues to avoid further violations, as well as
remedies such as decisions not to exercise an option on a contract,
contract termination, or referral to the agency suspending and debarring
official.
(iii) A contracting officer shall require that if information regarding
violations of labor laws by a contractor's subcontractor is brought to the
attention of the contractor pursuant to subsections (a)(iv), (v) or (b)(i)
of this section or similar information is obtained through other sources,
then the contractor shall consider whether action is necessary. A
contracting officer, Labor Compliance Advisor, and the Department of Labor
shall be available for consultation with a contractor regarding appropriate
steps it should consider. Such action may include appropriate remedial
measures, compliance assistance, and resolving issues to avoid further
violations.
(iv) The Department of Labor shall, as appropriate, inform contracting
agencies of its investigations of contractors and subcontractors on current
Federal contracts so that the agency can help the contractor determine the
best means to address any issues, including compliance assistance and
resolving issues to avoid or prevent violations.
(v) As appropriate, contracting officers in consultation with the Labor
Compliance Advisor shall send information provided pursuant to paragraphs
(i)-(iii) of this subsection to the agency suspending and debarring
official in accordance with agency procedures.
Sec. 3. Labor Compliance Advisors. Each agency shall
designate a senior agency official to be a Labor
Compliance Advisor, who shall:
(a) meet quarterly with the Deputy Secretary,
Deputy Administrator, or equivalent agency official
with regard to matters covered by this order;
(b) work with the acquisition workforce, agency
officials, and agency contractors to promote greater
awareness and understanding of labor law requirements,
including recordkeeping, reporting, and notice
requirements, as well as best practices for obtaining
compliance with these requirements;
(c) coordinate assistance for agency contractors
seeking help in addressing and preventing labor
violations;
(d) in consultation with the Department of Labor or
other relevant enforcement agencies, and pursuant to
section 4(b)(ii) of this order as necessary, provide
assistance to contracting officers regarding
appropriate actions to be taken in response to
violations identified prior to or after contracts are
awarded, and address complaints in a timely manner, by:
(i) providing assistance to contracting officers and other agency officials
in reviewing the information provided pursuant to sections 2(a)(i), (ii),
and (v) and 2(b)(i), (ii), and (iii) of this order, or other information
indicating a violation of a labor law, so as to assess the serious,
repeated, willful, or pervasive nature of any violation and evaluate steps
contractors have taken to correct violations or improve compliance with
relevant requirements;
(ii) helping agency officials determine the appropriate response to address
violations of the requirements of the labor laws listed in section 2(a)(i)
of this order or other information indicating such a labor violation
(particularly serious, repeated, willful, or pervasive violations),
including agreements requiring appropriate remedial measures, decisions not
to award a contract or exercise an option on a contract, contract
termination, or referral to the agency suspending and debarring official;
(iii) providing assistance to appropriate agency officials in receiving and
responding to, or making referrals of, complaints alleging violations by
[[Page 45312]]
agency contractors and subcontractors of the requirements of the labor laws
listed in section 2(a)(i) of this order; and
(iv) supporting contracting officers, suspending and debarring officials,
and other agency officials in the coordination of actions taken pursuant to
this subsection to ensure agency-wide consistency, to the extent
practicable;
(e) as appropriate, send information to agency
suspending and debarring officials in accordance with
agency procedures;
(f) consult with the agency's Chief Acquisition
Officer and Senior Procurement Executive, and the
Department of Labor as necessary, in the development of
regulations, policies, and guidance addressing labor
law compliance by contractors and subcontractors;
(g) make recommendations to the agency to
strengthen agency management of contractor compliance
with labor laws;
(h) publicly report, on an annual basis, a summary
of agency actions taken to promote greater labor
compliance, including the agency's response pursuant to
this order to serious, repeated, willful, or pervasive
violations of the requirements of the labor laws listed
in section 2(a)(i) of this order; and
(i) participate in the interagency meetings
regularly convened by the Secretary of Labor pursuant
to section 4(b)(iv) of this order.
Sec. 4. Ensuring Government-wide Consistency. In order
to facilitate Government-wide consistency in
implementing the requirements of this order:
(a) to the extent permitted by law, the FAR Council
shall, in consultation with the Department of Labor,
the Office of Management and Budget, relevant
enforcement agencies, and contracting agencies, propose
to amend the Federal Acquisition Regulation to identify
considerations for determining whether serious,
repeated, willful, or pervasive violations of the labor
laws listed in section 2(a)(i) of this order
demonstrate a lack of integrity or business ethics.
Such considerations shall apply to the integrity and
business ethics determinations made by both contracting
officers and contractors pursuant to this order. In
addition, such proposed regulations shall:
(i) provide that, subject to the determination of the agency, in most cases
a single violation of law may not necessarily give rise to a determination
of lack of responsibility, depending on the nature of the violation;
(ii) ensure appropriate consideration is given to any remedial measures or
mitigating factors, including any agreements by contractors or other
corrective action taken to address violations; and
(iii) ensure that contracting officers and Labor Compliance Advisors send
information, as appropriate, to the agency suspending and debarring
official, in accordance with agency procedures.
(b) the Secretary of Labor shall:
(i) develop guidance, in consultation with the agencies responsible for
enforcing the requirements of the labor laws listed in section 2(a)(i) of
this order, to assist agencies in determining whether administrative merits
determinations, arbitral awards or decisions, or civil judgments were
issued for serious, repeated, willful, or pervasive violations of these
requirements for purposes of implementation of any final rule issued by the
FAR Council pursuant to this order. Such guidance shall:
(A) where available, incorporate existing statutory standards for
assessing whether a violation is serious, repeated, or willful; and
(B) where no statutory standards exist, develop standards that take into
account:
(1) for determining whether a violation is ``serious'' in nature, the
number of employees affected, the degree of risk posed or actual harm done
by the violation to the health, safety, or well-being of a worker, the
amount of damages incurred or fines or penalties assessed with
[[Page 45313]]
regard to the violation, and other considerations as the Secretary finds
appropriate;
(2) for determining whether a violation is ``repeated'' in nature, whether
the entity has had one or more additional violations of the same or a
substantially similar requirement in the past 3 years;
(3) for determining whether a violation is ``willful'' in nature, whether
the entity knew of, showed reckless disregard for, or acted with plain
indifference to the matter of whether its conduct was prohibited by the
requirements of the labor laws listed in section 2(a)(i) of this order; and
(4) for determining whether a violation is ``pervasive'' in nature, the
number of violations of a requirement or the aggregate number of violations
of requirements in relation to the size of the entity;
(ii) develop processes:
(A) for Labor Compliance Advisors to consult with the Department of Labor
in carrying out their responsibilities under section 3(d) of this order;
(B) by which contracting officers and Labor Compliance Advisors may give
appropriate consideration to determinations and agreements made by the
Department of Labor and other agencies; and
(C) by which contractors may enter into agreements with the Department of
Labor or other enforcement agency prior to being considered for contracts.
(iii) review data collection requirements and processes, and work with the
Director of the Office of Management and Budget, the Administrator for
General Services, and other agency heads to improve those processes and
existing data collection systems, as necessary, to reduce the burden on
contractors and increase the amount of information available to agencies;
(iv) regularly convene interagency meetings of Labor Compliance Advisors to
share and promote best practices for improving labor law compliance; and
(v) designate an appropriate contact for agencies seeking to consult with
the Department of Labor pursuant to this order;
(c) the Director of the Office of Management and
Budget shall:
(i) work with the Administrator of General Services to include in the
Federal Awardee Performance and Integrity Information System information
provided by contractors pursuant to sections 2(a)(i) and (ii) and 2(b)(i)
of this order, and data on the resolution of any issues related to such
information; and
(ii) designate an appropriate contact for agencies seeking to consult with
the Office of Management and Budget pursuant to this order;
(d) the Administrator of General Services, in
consultation with other relevant agencies, shall
develop a single Web site for Federal contractors to
use for all Federal contract reporting requirements
related to this order, as well as any other Federal
contract reporting requirements to the extent
practicable;
(e) in developing the guidance pursuant to
subsection (b) of this section and proposing to amend
the Federal Acquisition Regulation pursuant to
subsection (a) of this section, the Secretary of Labor
and the FAR Council, respectively, shall minimize, to
the extent practicable, the burden of complying with
this order for Federal contractors and subcontractors
and in particular small entities, including small
businesses, as defined in section 3 of the Small
Business Act (15 U.S.C. 632), and small nonprofit
organizations; and
(f) agencies shall provide the Administrator of
General Services with the necessary data to develop the
Web site described in subsection (d) of this section.
[[Page 45314]]
Sec. 5. Paycheck Transparency. (a) Agencies shall
ensure that, for contracts subject to section 2 of this
order, provisions in solicitations and clauses in
contracts shall provide that, in each pay period,
contractors provide all individuals performing work
under the contract for whom they are required to
maintain wage records under the Fair Labor Standards
Act; 40 U.S.C. chapter 31, subchapter IV (also known as
the Davis-Bacon Act); 41 U.S.C. chapter 67 (also known
as the Service Contract Act); or equivalent State laws,
with a document with information concerning that
individual's hours worked, overtime hours, pay, and any
additions made to or deductions made from pay. Agencies
shall also require that contractors incorporate this
same requirement into subcontracts covered by section 2
of this order. The document provided to individuals
exempt from the overtime compensation requirements of
the Fair Labor Standards Act need not include a record
of hours worked if the contractor informs the
individuals of their overtime exempt status. These
requirements shall be deemed to be fulfilled if the
contractor is complying with State or local
requirements that the Secretary of Labor has determined
are substantially similar to those required by this
subsection.
(b) If the contractor is treating an individual
performing work under a contract or subcontract subject
to subsection (a) of this section as an independent
contractor, and not an employee, the contractor must
provide a document informing the individual of this
status.
Sec. 6. Complaint and Dispute Transparency. (a)
Agencies shall ensure that for all contracts where the
estimated value of the supplies acquired and services
required exceeds $1 million, provisions in
solicitations and clauses in contracts shall provide
that contractors agree that the decision to arbitrate
claims arising under title VII of the Civil Rights Act
of 1964 or any tort related to or arising out of sexual
assault or harassment may only be made with the
voluntary consent of employees or independent
contractors after such disputes arise. Agencies shall
also require that contractors incorporate this same
requirement into subcontracts where the estimated value
of the supplies acquired and services required exceeds
$1 million.
(b) Subsection (a) of this section shall not apply
to contracts or subcontracts for the acquisition of
commercial items or commercially available off-the-
shelf items.
(c) A contractor's or subcontractor's agreement
under subsection (a) of this section to arbitrate
certain claims only with the voluntary post-dispute
consent of employees or independent contractors shall
not apply with respect to:
(i) employees who are covered by any type of collective bargaining
agreement negotiated between the contractor and a labor organization
representing them; or
(ii) employees or independent contractors who entered into a valid contract
to arbitrate prior to the contractor or subcontractor bidding on a contract
covered by this order, except that a contractor's or subcontractor's
agreement under subsection (a) of this section to arbitrate certain claims
only with the voluntary post-dispute consent of employees or independent
contractors shall apply if the contractor or subcontractor is permitted to
change the terms of the contract with the employee or independent
contractor, or when the contract is renegotiated or replaced.
Sec. 7. Implementing Regulations. In addition to
proposing to amend the Federal Acquisition Regulation
as required by section 4(a) of this order, the FAR
Council shall propose such rules and regulations and
issue such orders as are deemed necessary and
appropriate to carry out this order, including sections
5 and 6, and shall issue final regulations in a timely
fashion after considering all public comments, as
appropriate.
Sec. 8. Severability. If any provision of this order,
or applying such provision to any person or
circumstance, is held to be invalid, the remainder of
this order and the application of the provisions of
such to any person or circumstance shall not be
affected thereby.
[[Page 45315]]
Sec. 9. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:
(i) the authority granted by law to an agency or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
Sec. 10. Effective Date. This order shall become
effective immediately and shall apply to all
solicitations for contracts as set forth in any final
rule issued by the FAR Council under sections 4(a) and
7 of this order.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
(Presidential Sig.)
THE WHITE HOUSE,
July 31, 2014.
[FR Doc. 2014-18561
Filed 8-4-14; 8:45 am]
Billing code 3295-F4
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</html>Indexed from Federal Register on August 5, 2014.
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