President Obama’s Executive Order 13673, called the Fair Pay and Safe Workplaces Order, uses the prospect of gaining or losing an edge in winning government contracts to provide a powerful incentive for employers to comply with a broad range of employment laws. On May 28, 2015, the Department of Labor (DOL) published a Proposed Guidance on implementation of the Order and invited the public to submit comments by July 27, 2015. Because aspects of the proposed guidance create compliance burdens for government contractors and could unfairly place some government contractors at a disadvantage in the procurement process, the contractor community would be prudent to submit comments that may lead to changes in the final guidance.

The proposed guidance has three principal components. First, it would require federal contractors to report to contracting officers whether there has been any administrative merits determination, civil judgment, or arbitral award or decision rendered against them during the preceding three-year period for violations of any of 14 identified federal employment laws and executive orders or equivalent State laws. The fourteen identified federal laws for which reports must be made are the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the National Labor Relations Act (NLRA), the Occupational Safety and Health Act (OSHA), the Davis-Bacon Act, the Service Contract Act, Executive Order 11246 (Equal Employment Opportunity), Section 503 of the Rehabilitation Act, the Vietnam Era Readjustment Assistance Act (VEVRAA), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), and Executive Order 13658 (Establishing a Minimum Wage for Contractors).