IN THE SENATE OF THE UNITED STATES
June 14, 2018
Ms. Smith (for herself, Mrs. Murray, Mrs. Gillibrand, Mr. Merkley, Mr. Blumenthal, Mrs. Feinstein, Ms. Baldwin, and Mrs. Shaheen) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
To provide for certain contracting requirements to promote fair and safe workplaces, and for other purposes.
This Act may be cited as the
Fair Pay and Safe Workplaces Act of 2018.
In this Act:
The term covered contract means a Federal contract for the procurement of property or services, including construction, valued in excess of $500,000.
The term covered subcontract—
means a subcontract for property or services under a Federal contract that is valued in excess of $500,000; and
does not include a subcontract for the procurement of commercially available off-the-shelf items.
The term executive agency has the meaning given the term in section 133 of title 41, United States Code.
The purpose of this Act is to—
ensure that the purchasing power of the Federal Government is employed to raise labor standards, improve working conditions, and strengthen workers’ bargaining power; and
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, which are designed to promote safe, healthy, fair, and effective workplaces and increase the likelihood of enhanced productivity in the workplace and the timely, predictable, and satisfactory delivery of goods and services to the Federal Government.
Required pre-contract award actions
The head of an executive agency shall ensure that the solicitation for a covered contract requires the offeror—
to 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 Secretary of Labor, rendered against the offeror in the preceding 3 years for violations of—
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.);
the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.);
the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.);
the National Labor Relations Act (29 U.S.C. 151 et seq.);
subchapter IV of chapter 31 of title 40, United States Code (commonly known as the
chapter 67 of title 41, United States Code (commonly known as the
Service Contract Act);
Executive Order 11246 (42 U.S.C. 2000e note; relating to equal employment opportunity);
section 503 of the Rehabilitation Act of 1973 (29 U.S.C. 793);
section 4212 of title 38, United States Code;
the Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.);
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.);
the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.);
Executive Order 13658 (79 Fed. Reg. 9851; relating to establishing a minimum wage for contractors); or
equivalent State laws, as defined in guidance issued by the Secretary of Labor;
to require each subcontractor for a covered subcontract—
to represent to the offeror and the entity designated by the final rule reissued under subsection (a) of section 7, to the best of the subcontractor’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 subcontractor in the preceding 3 years for violations of any of the labor laws and executive orders listed under paragraph (1); and
to update such information every 6 months for the duration of the subcontract; and
to consider the advice rendered by the entity designated by the final rule reissued under subsection (a) of section 7 or information submitted by a subcontractor pursuant to paragraph (2) in determining whether the subcontractor is a responsible source with a satisfactory record of integrity and business ethics—
prior to awarding the subcontract; or
in the case of a subcontract that is awarded or will become effective within 5 days of the prime contract being awarded, not later than 30 days after awarding the subcontract.
Pre-Award corrective measures
A contracting officer, prior to awarding a covered contract, shall, as part of the responsibility determination, provide an offeror who makes a disclosure pursuant to subsection (a) an opportunity to report any steps taken to correct the violations of or improve compliance with the labor laws listed in paragraph (1) of such subsection, including any agreements entered into with an enforcement agency.
The executive agency’s Labor Compliance Advisor designated pursuant to section 6, 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 concerning the offeror.
The contracting officer, in consultation with the executive agency’s Labor Compliance Advisor, shall consider information provided by the offeror under this subsection in determining whether the offeror is a responsible source with a satisfactory record of integrity and business ethics. The determination shall be based on the guidelines reissued under subsection (b)(1) of section 7 and the final rule reissued under subsection (a) of such section.
Referral of information to suspension and debarment officials
As appropriate, contracting officers, in consultation with their executive agency’s Labor Compliance Advisor, shall refer matters related to information provided pursuant to paragraphs (1) and (2) of subsection (a) to the executive agency’s suspension and debarment official in accordance with agency procedures.
Post-award contract actions
The contracting officer for a covered contract shall require that the contractor update the information provided under paragraphs (1) and (2) of section 4(a) every 6 months.
The contracting officer, in consultation with the Labor Compliance Advisor designated pursuant to section 6, shall determine whether any information provided under subsection (a) warrants corrective action. Such action may include—
an agreement requiring appropriate remedial measures;
resolving issues to avoid further violations;
the decision not to exercise an option on a contract or to terminate the contract; or
referral to the agency suspending and debarring official.
The prime contractor for a covered contract, in consultation with the Labor Compliance Advisor, shall determine whether any information provided under section 4(a)(2) warrants corrective action, including remedial measures, compliance assistance, and resolving issues to avoid further violations.
Department of labor
The Department of Labor shall, as appropriate, inform executive agencies of its investigations of contractors and subcontractors on current Federal contracts for purposes of determining the appropriateness of actions described under paragraphs (1) and (2).
Labor compliance advisors
Each executive agency shall designate a senior official to act as the agency’s Labor Compliance Advisor.
The Labor Compliance Advisor shall—
meet quarterly with the Deputy Secretary, Deputy Administrator, or equivalent executive agency official with regard to matters covered under this Act;
work with the acquisition workforce, agency officials, and agency contractors to promote greater awareness and understanding of labor law requirements, including record keeping, reporting, and notice requirements, as well as best practices for obtaining compliance with these requirements;
coordinate assistance for executive agency contractors seeking help in addressing and preventing labor violations;
in consultation with the Department of Labor or other relevant enforcement agencies, and pursuant to section 4(b) 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—
providing assistance to contracting officers and other executive agency officials in reviewing the information provided pursuant to subsections (a) and (b) of section 4 and section 5(a), or other information indicating a violation of a labor law in order 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;
helping agency officials determine the appropriate response to address violations of the requirements of the labor laws listed in section 4(a)(1) 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 executive agency suspension and debarment official;
providing assistance to appropriate executive agency officials in receiving and responding to, or making referrals of, complaints alleging violations by agency contractors and subcontractors of the requirements of the labor laws listed in section 4(a)(1); and
supporting contracting officers, suspension and debarment officials, and other agency officials in the coordination of actions taken pursuant to this subsection to ensure agency-wide consistency, to the extent practicable;
as appropriate, send information to agency suspension and debarment officials in accordance with agency procedures;
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;
make recommendations to the agency to strengthen agency management of contractor compliance with labor laws;
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 4(a)(1); and
participate in the interagency meetings regularly convened by the Secretary of Labor pursuant to section 7(b)(2)(C).
Measures to ensure government-wide consistency
Federal acquisition regulation
Notwithstanding Public Law 115–11 (131 Stat. 75) and section 553 of title 5, United States Code, not later than 1 year after the date of enactment of this Act, the Secretary of Defense, the Administrator of the General Services Administration, and the Administrator of the National Aeronautics and Space Administration shall reissue the final rule entitled
Federal Acquisition Regulation; Fair Pay and Safe Workplaces (81 Fed. Reg. 58,562 (Aug. 25, 2016)), subject to paragraph (2).
The agencies described in paragraph (1) may, in reissuing the final rule under such paragraph, update any date provided in such final rule as reasonable and necessary.
Department of labor
Not later than 1 year after the date of enactment of this Act, the Secretary of Labor shall reissue the guidance entitled
Guidance for Executive Order 13673, (81 Fed. Reg. 58,564 (Aug. 25, 2016)). In reissuing such guidance, the Secretary of Labor may update any date provided in such guidance as reasonable.
Fair Pay and Safe Workplaces
The Secretary of Labor shall—
develop a process—
for the Labor Compliance Advisors designated pursuant to section 6 to consult with the Secretary of Labor in carrying out their responsibilities under section 6(b)(4);
by which contracting officers and Labor Compliance Advisors may give appropriate consideration to determinations and agreements made by the Secretary of Labor and the heads of other executive agencies; and
by which contractors may enter into agreements with the Secretary of Labor, or the head of another executive agency, prior to being considered for a contract;
review data collection requirements and processes, and work with the Director of the Office of Management and Budget, the Administrator of General Services, and other agency heads to improve such requirements and processes, as necessary, to reduce the burden on contractors and increase the amount of information available to executive agencies;
regularly convene interagency meetings of Labor Compliance Advisors to share and promote best practices for improving labor law compliance; and
designate an appropriate contact for executive agencies seeking to consult with the Secretary of Labor with respect to the requirements and activities under this Act.
Office of management and budget
The Director of the Office of Management and Budget shall—
work with the Administrator of General Services to include in the Federal Awardee Performance and Integrity Information System the information provided by contractors pursuant to sections 4(a)(1) and 5(a) and data on the resolution of any issues related to such information; and
designate an appropriate contact for agencies seeking to consult with the Office of Management and Budget on matters arising under this Act.
General services administration
The Administrator of General Services, in consultation with other relevant executive agencies, shall establish a single Internet website for Federal contractors to use for all Federal contract reporting requirements under this Act, as well as any other Federal contract reporting requirements to the extent practicable.
The heads of executive agencies with covered contracts shall provide the Administrator of General Services with the data necessary to maintain the Internet website established under paragraph (1).
Minimizing compliance burden
After reissuing the guidance under subsection (b)(1) or the final rule under subsection (a), the Secretary of Labor or the Secretary of Defense, the Administrator of the General Services Administration, and the Administrator of the National Aeronautics and Space Administration may, respectively, amend such guidance or final rule consistent with the requirements under chapter 5 of title 5, United States Code.
Each executive agency entering into a covered contract, or covered subcontract, shall ensure that provisions in solicitations for such contracts, or subcontracts, and clauses in such contracts, or subcontracts, shall provide that, for each pay period, contractors or subcontractors provide each individual described in subsection (b) with a document containing information with respect to such individual for the pay period concerning hours worked, overtime hours worked, pay, and any additions made to or deductions made from pay.
An individual described in this subsection is any individual performing work under a contract or subcontract for which the contractor or subcontractor is required to maintain wage records under—
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.);
subchapter IV of chapter 31 of title 40, United States Code (commonly referred to as the
chapter 67 of title 41, United States Code (commonly known as the
Service Contract Act); or
an applicable State law.
Employees exempt from overtime requirements
The document provided under subsection (a) to individuals who are exempt under section 13 of the Fair Labor Standards Act of 1938 (29 U.S.C. 213) from the overtime compensation requirements under section 7 of such Act (29 U.S.C. 207) shall not be required to include a record of the hours worked if the contractor or subcontractor informs the individual of the status of such individual as exempt from such requirements.
Substantially similar state laws
The requirements under this section shall be deemed to be satisfied if the contractor or subcontractor complies with State or local requirements that the Secretary of Labor has determined are substantially similar to the requirements under this section.
If the contractor or subcontractor is treating an individual performing work under a covered contract or subcontract as an independent contractor, and not as an employee, the contractor or subcontractor shall provide the individual a document informing the individual of their status as an independent contractor.
Complaint and dispute transparency
The head of an executive agency may not enter into a contract for the procurement of property or services valued in excess of $500,000 unless the contractor agrees that any decision to arbitrate the claim of an employee or independent contractor performing work under the contract that arises under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or any tort related to or arising out of sexual assault or sexual harassment may only be made with the voluntary consent of the employee or independent contractor after the dispute arises.
The head of an executive agency shall require that a contractor covered under paragraph (1) incorporate the requirement under such subsection into each subcontract for the procurement of property or services valued in excess of $500,000 at any tier under the contract.
Contracts for commercial items and commercially available off-the-shelf items
The requirements under subsection (a) do not apply to contracts or subcontracts for the acquisition of commercial items or commercially available off-the-shelf items (as those terms are defined in sections 103(1) and 104, respectively, of title 41, United States Code).
Employees and independent contractors not covered
The requirements under subsection (a) do not apply with respect to an employee or independent contractor who—
is covered by a collective bargaining agreement negotiated between the contractor or subcontractor and a labor organization representing the employee or independent contractor; or
entered into a valid agreement to arbitrate claims covered under such subsection before the contractor or subcontractor bid on the contract covered under such subsection, except that such requirements do apply—
if the contractor or subcontractor is permitted to change the terms of the arbitration agreement with the employee or independent contractor; or
in the event the arbitration agreement is renegotiated or replaced after the contractor or subcontractor bids on the contract.
Costs incurred in maintaining satisfactory relations between a contractor, and its employees, on a covered contract or a subcontractor, and its employees, on a covered subcontract (other than those made unallowable in subsection (b) of this section), including costs of shop stewards, labor management committees, employee publications, and other related activities, are allowable.
Limitation on Federal funds
No Federal funds made available through a covered contract or covered subcontract may be used to engage in activities undertaken to persuade employees, of any entity, to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees’ own choosing or any other activities that are subject to the requirements under section 203(b) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 433(b)). Examples of unallowable costs under this subsection include the costs of—
preparing and distributing materials;
hiring or consulting legal counsel or consultants;
meetings (including paying the salaries of the attendees at meetings held for this purpose); and
planning or conducting activities by managers, supervisors, or union representatives during work hours.
Not later than 9 months after the date of enactment of this Act, the Federal Acquisition Regulatory Council shall amend the Federal Acquisition Regulation to carry out the provisions of this Act, including sections 8 and 9.
If any provision of this Act or the application of any such provision to any person or circumstance is held to be unconstitutional, the remaining provisions of this Act and the application of such provisions to any person or circumstance shall not be affected by such holding.
Rules of construction
Nothing in this Act shall be construed as—
impairing or otherwise affecting the authority granted by law to an executive agency or the head thereof; or
impairing or otherwise affecting the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.