BARBARA L. JOHNSON JOINS BENTON POTTER & MURDOCK, P.C. AS COUNSEL

Benton Potter & Murdock, P.C., is pleased to announce that Barbara L. Johnson is now Counsel to the firm. She brings a wealth of experience handling a broad range of labor and employment legal issues, including civil rights discrimination claims in federal and state court, class and collective actions, whistleblower/retaliation claims, wage and hour claims, public law (municipalities and schools), breach of contract claims, and arbitrations. She also represents employers before state and federal agencies, including the Equal Employment Opportunity Commission, state Human Rights agencies, the Department of Labor, and the Department of Justice. She assists employers with developing and implementing employment policies, conducting workplace investigations, regulatory and compliance matters, implementing diversity and leadership programs, and day-to-day employment law issues.

Ms. Johnson has more than 25 years of experience in representing employers in employment law matters and has tried more than 30 employment law cases. She is a member of the bars of the United States Supreme Court, the District of Columbia, Texas, and Michigan. She is admitted to practice before the: District Court for the District of Columbia; Fifth Circuit Court of Appeals; and Northern, Southern, Eastern and Western District of Texas. She is certified by the Texas Board of Legal Specialization in Labor and Employment Law, and serves as President, National Employment Law Council, and Chair, the Employment Law Committee of the Business Law Section of the American Bar Association. She is a member of the: American Bar Association’s College of Labor & Employment Lawyers; Texas College of Labor & Employment Lawyers; National Bar Association; International Association of Defense Counsel; Defense Research Institute; and Litigation Counsel of America. She is listed in the International Who’s Who of Business Lawyers, and has been recognized by Washington DC Super Lawyers.

Ms. Johnson can be reached at: blj@bpmlawyers.com; 571-356-9007.

DEBBI M. COHEN JOINS BENTON POTTER & MURDOCK, P.C. AS COUNSEL

Benton Potter & Murdock, P.C., is pleased to announce that Debbi M. Cohen is now Counsel to the firm. Ms. Cohen has spent over 25 years successfully working on behalf of employers in all aspects of traditional labor law, labor and employee relations, employment law and litigation. She brings a wealth of experience handling a broad range of labor and employment legal issues. She provides counsel, strategic support, investigative, and alternative dispute resolution services to businesses seeking to enhance operations by minimizing workforce disruptions and resolve workplace disputes at the earliest possible opportunity and lowest possible cost. Ms. Cohen represents employers before federal courts and administrative agencies, including the Equal Employment Opportunity Commission, state Human Rights agencies, the National Labor Relations Board and the Department of Labor. Her services include counseling related to all aspects of the employment relationship; handling discrimination charges and other employment complaints; collective bargaining; grievance handling, mediations and arbitrations; labor and employee relations strategic planning, particularly related to mergers, acquisitions and divestitures, and government contractor compliance; and assisting employers with developing and implementing employment policies, practices and training.

Ms. Cohen is a member of the bars of the United States Supreme Court, the District of Columbia, and Tennessee, and is a mediator and registered neutral with the Georgia Office of Dispute Resolution.

Ms. Cohen can be reached at: dcohen@bpmlawyers.com; 202-798-6053.

Final Rule and Guidance Issued on Fair Pay and Safe Workplaces Executive Order for Federal Contractors, by Debbi Cohen

The Federal Acquisition Regulations Council (“FAR Council”) and the U.S. Department of Labor (“DOL”) have issued their Final Rule and Guidance implementing President Obama’s Executive Order 13673 – “Fair Pay and Safe Workplaces.” Together, the Rule, Guidance and commentary total over 800 pages, and is effective October 25, 2016.
As a reminder, under some of its more onerous elements, E.O. 13673, which was issued on July 31, 2014, requires that companies bidding on federal contracts valued at over $500,000 have to indicate at the initial bid submission stage whether they have had any “administrative merits determinations, arbitral awards or decisions, or civil judgments”rendered against them during the preceding three-years for violations of specified federal labor and employment laws and/or their “equivalent state laws.” The information disclosed will then be used by contracting officers, in consultation with an agency’s “labor compliance advisor,” (“ALCA”) to determine whether the bidder has a satisfactory record of integrity and business ethics to obtain the federal contract. E.O. 13673 also requires that bidding contractors ensure that their subcontractors meet the same requirements, and that both successful primes and their subs update information semi-annually during the term of the contract.
Although effective October 25, under the new Rule, disclosure requirements contained in the E.O. will only apply to solicitations valued at $50 million or more until April 25, 2017; thereafter, the disclosure requirements will begin to be included in solicitations valued at $500,000 or more. Further, although the Proposed Rule contained a three-year look back for covered violations, the Final Rule only requires contractors to look back one year when the Rule first becomes effective. The look-back period will then increase gradually each year until October 2018 when it will reach the proposed three-year look-back period.
One significant change between the Proposed Rule and the Final Rule involves the reporting obligations of subcontractors. First, subcontractor reporting is not required to begin until October 25, 2017, a year after prime contractor reporting. Second, prime contractors will no longer be responsible for assessing the labor violations of their subcontractors as initially proposed. Rather, covered subcontractors must now report their labor violations directly to the appropriate ALCA, who will assess the disclosed violations and make a recommendation regarding the suitability of the subcontractor, which the subcontractor will then report back to the prime contractor.
As noted in prior posts, it is not too soon to begin preparing for compliance with E.O.13673. In particular, you could, in consultation with counsel, (1) review your records for reportable events; (2) check to ensure you have processes in place to handle compliance, reporting and corporate oversight for record-keeping; (3) confirm you have processes in place to ensure appropriate remedial actions are taken in the event potential violations of the specified laws occur, and that remedial actions are recorded for mitigation purposes; (4) implement procedures for monitoring subcontractor compliance; and (5) perhaps reconsider strategies for resolving the types of claims covered by E.O. 13673, since even entering into a voluntary settlement agreement or consent order, which may otherwise have made good business or financial sense before E.O. 13673, could have different and possibly adverse consequences going forward. In this regard, it is important to note that, to date, the DOL has still not released a comprehensive list of state laws that are covered by the E.O., but the final guidance just issued did clarify the scope of the administrative determinations that could be considered violations against a contractor. These include EEOC reasonable cause determinations, NLRB complaints, Wage and Hour unpaid wage determinations (WH-56), OSHA citations, and OFCCP show cause notices, to name a few troubling examples.

Debbi Cohen is Counsel to Benton Potter & Murdock, P.C.

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