OLMS to Issue Final Rule on Notification of Employee Labor Law Rights

Push pin on bulletin boardThe Department of Labor’s Office of Labor Management Standards (OLMS) will publish in tomorrow’s Federal Register a final rule (pdf) implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  This EO mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA).

This EO also revoked an earlier EO issued by former President Bush – Notification of Employee Rights Concerning Payment of Union Dues or Fees – which had required federal contractors to post a notice (commonly known as “Beck” notices) to their employees informing them that they were not required to join or maintain membership in a labor union, and that those who were not union members – but were nonetheless required to pay dues or fees pursuant to a union security agreement – could object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment. The final rule revoking the Beck notice requirement was issued in March 2009.

The final rule to be published on May 20 prescribes requirements for the size, form, and content of the notice, outlines the exceptions for certain types of contracts, and discusses the standards and procedures related to complaints, penalties, compliance evaluations and enforcement of the notice requirement, among other things. Highlights of the final rule include the following:

  • The obligations of the final rule apply to both government contractors and their subcontractors at any tier.
  • The notice requirements do not apply to collective bargaining agreements under the Federal Service Labor Management Relations Statute, contracts below the simplified acquisition threshold ($100,000), contracts resulting from solicitations issued before the effective date of this rule, and contracts and subcontracts for work performed exclusively outside the territorial United States.
  • The exception for government contracts for less than $100,000 applies only to the prime contract and not to subcontracts of the prime contract.
  • This notification requirement does not apply to subcontracts that are de minimis in value, which the OLMS has defined as those subcontracts that do not exceed $10,000.
  • Federal contractors that are covered by the Railway Labor Act (RLA) are excluded from the requirements of the EO.
  • The final notice retains the provision stating that an employee has the right to not join or remain a member of a union that represents the employee’s bargaining unit. However, the OLMS notes, “further explication of Beck rights will not be included because of space limitations and because of the policy choice, as expressed in Executive Order 13496, to revoke a more explicit notice to employees of Beck rights.”
  • With respect to the list of unlawful conduct to be included in the notice, the OLMS decided to modify four examples of illegal employer conduct in order to clarify them and included additional examples of unlawful union activity “to more thoroughly reflect the range of unlawful union conduct.”
  • A contractor meets the requirement to post the employee notice conspicuously if the notice is prominent and can readily be seen by employees. In addition, contractors that customarily post notices to employees electronically must also post the required notice electronically. Such contractors or subcontractors satisfy the electronic posting requirement by displaying prominently on any website that is maintained by the contractor or subcontractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment, a link to the DOL’s website that contains the full text of the poster. The link to the Department’s website must read, “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.” If a significant portion of the contractor’s workforce is not proficient in English, this information must be provided in the language they speak.
  • With respect to specific language included in the notice, the rule explains that the preamble has been revised from that outlined in the proposed rule to read as follows:

The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board, the federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below if you have any questions about specific rights that may apply in your particular workplace.

The coverage provision, associated with the asterisk in the introduction, states:

The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

  • The poster will be available on the DOL’s website, and is designed to print on one sheet of 11-inch by 17-inch paper or two sheets of standard 8 ½-inch by 11-inch paper.

A poster with the required employee notice, including a poster with the employee notice translated into languages other than English, will be printed by the Department, and will be provided by the federal contracting agency or may be obtained from the Division of Interpretations and Standards, Office of Labor-Management Standards, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210, or from any field office of the Department’s Office of Labor-Management Standards or Office of Federal Contract Compliance Programs. A copy of the poster in English and in languages other than English also may be downloaded from the Office of Labor-Management Standards website at http://www.olms.dol.gov.

This final rule takes effect 30 days after publication in the Federal Register.

For more information on this new rule, see Littler's ASAP:  DOL Issues Final Rule on Notification by Federal Contractors of Employee Labor Law Rights by David Goldstein and Jay Sumner.

Photo credit: blackred

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.