Obama Fair Pay and Safe Workplaces Executive Order for Federal Contractors Dead! By Debbi Cohen

Yesterday, President Trump signed a joint resolution of disapproval under the Congressional Review Act (CRA) blocking the rule implementing President Obama’s Executive Order 13673 – “Fair Pay and Safe Workplaces” or as it is commonly known, the “Blacklisting Rule” – effectively killing it in its entirety.

As a reminder, under some of its more onerous elements, E.O. 13673, which was issued on July 31, 2014, would have required that companies bidding on federal contracts valued at over $500,000 would have had to indicate at the initial bid submission stage whether they had 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 would then have been used by contracting officers, in consultation with an agency’s “labor compliance advisor,” (“ALCA”) to determine whether the bidder had a satisfactory record of integrity and business ethics to obtain the federal contract being sought. It also required contractors to provide employees with specific information regarding exempt status and overtime on their paychecks, required specific notices to independent contractors, and prohibited pre-dispute arbitration agreements.

In October 2016, a federal court in Texas temporarily blocked the “blacklisting” elements of the EO but not the other requirements, which would have arguably still placed significant administrative obligations on federal contractors. The resolution of disapproval (H.J. Res. 37) passed by both Houses of Congress and which was signed by the President yesterday states as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration relating to the Federal Acquisition Regulation (published at 81 Fed. Reg. 58562 (August 25, 2016)), and such rule shall have no force or effect."

Under the CRA, any rule set aside by this mechanism cannot be “reissued in substantially the same form.” Thus, President Trump’s signature yesterday effectively killed E.O. 13673.

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

Important Legal Notice and Disclaimer

Employers Must Use New I-9 Form Starting January 22, 2017: by Debbi M. Cohen

Last November, the US Citizenship and Immigration Services (USCIS) issued a revised version of its Employment Eligibility Verification Form I-9. By January 22, 2017, all employers must use only this version, which is dated November 14, 2016. Prior versions of the Form I-9 will be invalid for use after January 22, 2017.

Most of the changes to the Form were intended to simplify its completion via computer and to minimize completion errors. However, the Form can still be printed and completed by hand. A copy of the new Form I-9 can be obtained here.

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

Important Notice and Disclaimer

Texas Court Stops US DOL Again – Eastern District Enjoins Overtime Rule Only Days Before Scheduled Effective Date, by Debbi M. Cohen*

In case you missed it while taking a little break for the Thanksgiving holiday, on November 22, 2016, the United States District Court for the Eastern District of Texas gave employers, business groups, states, and other interested parties the relief they had sought from imminent implementation of the US Department of Labor’s (DOL’s) new overtime rule when it temporarily stopped the new rule from taking effect as scheduled on December 1. As discussed in previous blog posts, the new Fair Labor Standard Act (FLSA) “white collar” overtime rule would have more than doubled the salary threshold for exempt status under the FLSA overtime pay exemption. The rule had been challenged in two lawsuits consolidated before the court. In granting the Plaintiffs’ requested relief, the judge stated, "A preliminary injunction preserves the status quo while the court determines the department's authority to make the final rule as well as the final rule's validity."

The temporary injunction is national in scope, blocking the new overtime rule from going into effect anywhere. In granting the temporary injunction, the judge indicated in his opinion his belief that the Plaintiffs in this case are likely to prevail on the merits. Of course, the DOL is likely to appeal the court’s decision and to continue to pursue its position on the merits in the lower court so the judge’s decision at this point is not final. Nonetheless, it may be a while before another decision is made.

What this means for employers is that, for now, the existing “white collar” overtime rule that has been in place since 2004 will remain in place, including the current lower salary threshold combined with a duties test. In the meantime, employers who were in the process of changing their pay practices in time for the December 1 implementation deadline of the new rule may find themselves between a rock and a hard place wondering whether to continue with pay changes or to revert to past practices. The court’s decision does not require employers who have already reclassified employees or made salary increases in anticipation of compliance with the higher threshold levels of the new rule to revert to the current rule. Employers generally also cannot recoup payments made to employees in anticipation of the required changes. Further, for those employers who have not yet implemented changes, while changes may no longer be legally mandated, at this late date, it may be prudent to consider what communications have already been made to employees, what other employers are doing and whether additional changes to your practices will have employee relations or administrative consequences. For specific questions about your own compliance efforts in light of this new development, consult counsel.

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

Important Notice and Disclaimer

Voters in 7 States Approve Recreational or Medical Marijuana Use—Is This the Tipping Point for Legalization? By Barbara Johnson

Introduction

On election day, voters in California, Nevada, Maine, and Massachusetts approved the legalization of marijuana for recreational purposes. An additional three states, Florida, Arkansas and North Dakota, approved the legalization
of marijuana for medicinal purposes—a huge victory for the proponents of legalized marijuana. Of all the initiatives up for vote, the initiative in Arizona was the only one rejected by the voters. The most significant victory was the legalization of recreational
use of marijuana in California. There’s an adage that goes, “As California goes, so goes the country”. If that adage proves true, Tuesday’s election is a watershed moment for the legalization movement.

Even though Colorado and Washington voters led the way with the passage of initiatives in November 2012 that legalized the recreational use of marijuana, legalization of marijuana for recreational purposes in California, a state
with the economy of a large industrial country, is a game changer. With legalization in California and other key states, the federal government faces growing pressure to change its stance on marijuana as an illegal drug for which there is no accepted medical use and a high potential for abuse (as defined by the Food & Drug Administration). Under federal law, marijuana is classified as a Schedule I substance, the same as drugs such as heroin and LSD.

In August of 2016, the DEA responded to a petition to remove marijuana from Schedule I. In its response to the petition, the agency stated that there is no accepted medical use for marijuana because "the drug’s chemistry is not
known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available. There is no consensus among qualified experts that marijuana is safe and effective for use in treating a specific, recognized disorder. At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically
evaluate safety and efficacy."

RECREATIONAL MARIJUANA ON 2016 BALLOT: RESULTS

Note: Results in some states have not been certified and are not available through a government source. Politico is used for ballot results in states where results are not available through a government source.

California

Voters in California passed an initiative that will legalize the recreational use of marijuana for adults over the age of 21. The initiative passed[1] by a 56-44 margin.

California has a long history of voting on marijuana reform. The state passed[2]
the country’s first medical marijuana law in 1996. The latest measure, Proposition 64, the Adult Use of Marijuana Act (AUMA),[3] legalizes:
-the possession of 1 ounce of marijuana flower, or up to 8 grams of cannabis

-concentrates for age 21 and older

-cultivation of up to 6 plants

-industrial cultivation of hemp

-taxed and regulated system for a recreational marijuana industry

-Restrictions on marketing to minors, localized tax rates, and restrictions on commercial marijuana operators determined on a county / municipal level.

-systems for reducing sentences and expunging past marijuana convictions

Implications for the Workplace in California

Proposition 64 allows employers to have drug-free workplace policies that prohibit marijuana use by employees. It also allows federally contracted employers to continue complying with federal drug testing requirements without
fear of violating state or federal law. However, the California Constitution protects an employee’s right to privacy and drug testing may not be allowed except for employees in safety sensitive positions.

Nevada

Voters in Nevada passed[4] an initiative (Question 2) that legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed / failed by a 54-46 margin. The state passed medical marijuana (Question 9)[5]
in 2000. The recreational initiative allows for:

-possession of 1 ounce of marijuana,

-a taxed and regulated recreational cannabis industry with tax revenue supporting K-12 education,

-includes a clause that allows anyone who does not live within 25 miles of a marijuana store to grow up to 6 marijuana plants.

Implications for the Workplace in Nevada

Employers may continue to enact and enforce policies that restrict drug use, including marijuana. And this includes drug testing.

Maine

Voters in Maine passed[6] an initiative (Question 1) that legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed by a 50.15-49.85 margin. Under the law, Maine’s Department of Agriculture, Conservation and Forestry is responsible for regulating and controlling the cultivation, manufacture, distribution and sale of marijuana in the state

The new law legalizes:

-the possession of up to 2 1/2 ounces of marijuana,

-the possession, cultivation and transportation of up to 6 flowering marijuana plants, 12 immature marijuana plants and unlimited seedlings, and possession of all the marijuana produced by the marijuana plants at that person’s residence.

Implications for the Workplace in Maine

The amendment for MRSA §2454(3) adds: "A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside
of the school's, employer's or landlord's property."

This amendment may restrict pre-employment drug testing for marijuana. The law specifically allows employers to have workplace policies that restrict employee marijuana use.

Arizona

Voters in Arizona failed to pass[7] an initiative (Prop 205) that would have legalized the recreational use of marijuana for adults over the age of 21. The initiative failed by a 52-48 margin. Medical marijuana is already available for almost 100,000 cardholders; however, recreational marijuana is still illegal.

The Legalization and Regulation of Marijuana Act (Proposition 205) initiative would have legalized:

-the possession of up to 1 ounce of marijuana,

-a taxed and regulated recreational cannabis industry,

-adults over 21 would have been able to grow up 6 marijuana plants in an enclosed, locked space within their homes and possess the marijuana produced by those plants in the location where it was grown,

-A limit of the total marijuana plants grown in a single residence would have been limited at 12,

-The creation of a new agency called the Department of Marijuana Licenses and Control for oversight of the marijuana industry

Massachusetts

Voters in Massachusetts passed[8] an initiative (Question 4) which legalizes the recreational use of marijuana for adults over the age of 21. The initiative passed by a 54-46 margin. The Question 4 initiative regulates and taxes marijuana for recreational use like alcohol.

The initiative legalizes:

-possession up to 1 ounce of marijuana outside of an individual’s residence,

-possession of up to 10 ounces of marijuana in an enclosed, locked space within their residences,

-growing up to 6 marijuana plants in an enclosed, locked space within their residences and possess the marijuana produced by those plants in the location where it was grown. No more than 12 total marijuana plants can be grown in a single residence.

Implications for the Workplace in Massachusetts

The law does not mention drug testing, but it does state that it does not affect employer's authority to enact workplace policies.

MEDICAL MARIJUANA 2016 BALLOT RESULTS

Florida

Voters in Florida passed[9] an initiative (Amendment 2) that legalizes the medical use of marijuana. The initiative passed by a 71-29 margin. Previously, a medical marijuana initiative in Florida had been defeated by a 2% margin in 2014.

The 2016 Amendment 2 initiative legalizes:

-the medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician,

-allows caregivers to assist patients’ medical use of marijuana,

-Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers.

Implications for the Workplace in Florida

Amendment 2 restricts on-site marijuana use at work, and it is unclear how this law will affect drug testing programs.

Arkansas

Arkansas had two competing proposals: The Arkansas Medical Cannabis Act (Issue 7) and the Arkansas Medical Marijuana Amendment (Issue 6). Issue 7 was struck from the ballot on October 27th, 2016 by the Arkansas Supreme Court due
to invalid signatures. Voters in Arkansas passed Initiative 6, legalizing the medical use of marijuana. Issue 6 passed by a 53-37 margin. Issue 6 makes repeal of the law impossible as it is a state constitutional amendment. It legalizes medical cannabis under guidance of a physician. The program under the control of Arkansas Alcoholic Beverage Control and a new medical marijuana commission.

Implications for the Workplace in Arkansas

Issue 6 states "An employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon the individual's past or present status as
a qualifying patient or designated caregiver" (Sec. 3). This provision will likely create require employers to be able to demonstrate an employee is impaired before terminating or disciplining an employee for testing positive for marijuana.

Montana

Voters in Montana passed[10] an initiative (I-182) that further reduced restrictions on the medical use of marijuana. The initiative passed by a 58-42 margin.

Montana reinstated its medical marijuana laws through I-182. The initiative allows patients to access and use marijuana for several debilitating illnesses. Medical marijuana was originally made legal in 2004 in the state. However, legislative restrictions made implementation of the law a challenge.

The new measure (I-182) repealed former measure SB 423's requirements that medical marijuana providers have no more than three patients and the state review physicians who prescribe marijuana to more than 25 patients per year.
The measure allowed physicians to prescribe marijuana for patients diagnosed with chronic pain or post-traumatic stress disorder (PTSD).

Implications for the Workplace in Montana

The existing medical marijuana law in Montana does not prohibit workplace drug testing and the newly approved initiative does not change existing law in this regard.

North Dakota

A measure in North Dakota (Measure 5) legalized the limited use of medical marijuana. It passed[11] by a 64-36 margin.

The initiative made it legal for North Dakota residents who suffer from one of several debilitating illnesses to use marijuana with a doctor’s permission. They can possess up to 3 ounces of marijuana for medical purposes from either a state-licensed dispensary or a personally grown supply.

Implications for the Workplace in North Dakota

The new law does not mention the workplace or drug testing.

LEGALIZATION OF MARIJUANA AS OF NOVEMBER 12, 2016
*Note: This map does not include states that have allowed limited medical use of CBD oil or states that have decriminalized marijuana. There are variations in the states marked as illegal in the map above.

As this map demonstrates, more than half the states in this country allow individuals to use marijuana for recreational and/or medicinal purposes. Unlike Department of Transportation and the Department of Defense regulations which
call for zero tolerance of marijuana use, the trend is for state laws to require an employer to show that an employee was “impaired” by marijuana before taking an adverse employment action.

Historically, employers have been able to rely upon marijuana’s designation as a Schedule I illegal drug to justify discipline of employees under workplace drug testing programs and courts consistently have sided with employers
in challenges to termination decisions based on positive tests for marijuana. However, it is unlikely that this trend will continue.

This is an ideal time for employers to reexamine their substance abuse policies to ensure the policies conform to state law. The number of employees who are using marijuana in conformance with state law will continue to grow. Employers
should decide how to address this trend. There are several factors to consider, including: is the workforce covered by Department of Transportation regulations, which trump state law? Are employees in safety sensitive positions? What is the effect of the legalization on the employer’s ability to hire and retain qualified employees? Does the employer’s substance abuse policy address the serious implications of prescription drug or opiate abuse?

In the next part of this series, we will continue to explore issues related to the legalization of marijuana, including the challenges of measuring whether an individual is impaired by marijuana, emerging technology to measure
the presence of marijuana, and issues related to possession of marijuana.

References

[1]
http://vote.sos.ca.gov/returns/maps/ballot-measures/prop/64/

[2]
https://www.cdph.ca.gov/programs/MMP/Pages/CompassionateUseact.aspx

[3]
http://voterguide.sos.ca.gov/en/propositions/64/

[4]http://www.politico.com/2016-election/results/map/ballot-measures/nevada/

[5]
http://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/2000.pdf

[6]
http://www.politico.com/2016-election/results/map/ballot-measures/maine/

[7]
http://www.politico.com/2016-election/results/map/ballot-measures/arizona/

[8]
http://www.politico.com/2016-election/results/map/ballot-measures/massachusetts/

[9]
http://www.politico.com/2016-election/results/map/ballot-measures/florida/

[10]
http://mtelectionresults.gov/resultsSW.aspx?type=BQ&map=CTY

[11]
http://www.politico.com/2016-election/results/map/ballot-measures/north-dakota/

Barbara Johnson is Counsel to Benton Potter & Murdock, P.C.

Important Notice and Disclaimer

Election Day is Coming – Are You Prepared to Respond to Requests for Time Off for Voting? By Debbi Cohen*

Election Day – November 8 – is quickly approaching. Many states require that employees have reasonable time off work to vote – typically two or three consecutive hours (more in some states) when the polls are open, which could be before or after the employees’ scheduled workday. If employees do not have reasonable time to vote, including either before or after their scheduled workday, employers generally must permit them, upon reasonable advanced notice, to take a reasonable amount of time off from work to vote. Typically, employers may not require employees to use meal or other break times to vote, but if an employee who does not have reasonable time before or after the scheduled workday requests time off to vote, the employee’s supervisor may schedule the employee’s time off at the beginning or end of the workday. The amount of time off that will be considered reasonable will depend upon the circumstances, including the polling hours, distance from work, time of day, business needs and other appropriate factors. Supervisors should inform employees in advance if proof of voting or attempting to vote will be required to substantiate an absence from work, particularly if needed to verify pay status or avoid adverse attendance consequences.

In most states, employers that are required to grant employees time off during the workday to vote do not have to pay employees for the time off. However, in an increasing number of states, if an employee does not have reasonable time, as determined by state law, to vote before or after work, employers must not only grant employees time off to vote, but also cannot withhold pay for the time they are off work or otherwise make a deduction in their pay, thereby essentially making the time off for voting “with pay.” These states include: Alaska, Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming. Of course, employers in these states can require employees fulfill advanced notice requirements for taking leave and provide proof of voting before paying employees.

Finally, there are a few states in which employers are required to grant reasonable voting leave regardless of whether there is reasonable time to vote outside the employee’s scheduled workday, though employees may be required to provide advanced notice, and there are states that are simply ambiguous as to whether employees must be paid when they take time off from work during their scheduled workday to vote, since the state law simply says that employers may not restrain or otherwise interfere with the exercise of voting rights or inflict any injury or loss upon employees for taking a reasonable amount of time to vote. In this regard, some states, again with advanced notice, also may require more than the customary two to three hours of time off, and two states – Minnesota and West Virginia – require employers, upon request, to grant employees time off with pay during the workday regardless of other possible voting opportunities. Consequently, it is critical that managers and supervisors are prepared to respond to employee voting leave requests and know who to contact if they have questions regarding voting leave or employee requests for time off to serve as election judges or to perform other election-related work.

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

Important Notice and Disclaimer

White House Introduces Worker.Gov, By Debbi Cohen

On October 28, the White House introduced a new website designed to make it easier for employees to learn about their employment rights and, if appropriate, to file charges and complaints against their employers. The new site – Worker.gov – is in beta version and is supposedly designed to improve with use and feedback.

Unlike agency specific websites, employees who visit Worker.gov do not need to know which law they think may have been violated or which agency they think can help them. Instead, they are led through a series of user-friendly questions about their lives and jobs, which direct them down paths to determine whether they need assistance, based on the answers they provide, and in the end, if deemed warranted by the site, they are given the option of filing a charge or complaint with the appropriate agency. The site is a partnership among the U.S. Department of Labor, the National Labor Relations Board, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice.

Information on Worker.gov is provided under broad headings related to equal treatment, “the right to engage with others to improve wages and working conditions,” the right to a safe and healthy work environment, and the right to be paid. According to the DOL’s press release announcing the site, this is “providing workers access to critical information about their rights under the major labor statutes in a way that makes sense to them.” The focus is on the workers’ sense of fairness, rather than on particular laws. Of course, since unfair is not generally unlawful, it remains to be seen what effect, if any, launch of this site will have on the filing or processing of charges and complaints.

Debbi Cohen is Counsel with Benton Potter & Murdock, P.C.
Important Notice and Disclaimer

DOL Issues Final Rule Establishing Paid Sick Leave for Federal Contractors – Are You Ready? By Debbi Cohen

Last week, the U.S. Department of Labor (DOL) published its Final Rule to implement Executive Order (E.O.) 13706, which was signed by President Obama on Labor Day 2015, establishing paid sick leave for Federal Contractors. In short, the Rule will apply to “covered contracts” – defined broadly and with limited exceptions in the Rule – which are newly solicited, awarded outside the solicitation process, renewed, extended, or amended on or after January 1, 2017, and it requires parties that enter into covered contracts with the Federal Government to provide “covered employees” – again, there are limited exclusions, including a temporary exclusion for employees covered by a collective bargaining agreement – with up to 7 days (56 hours) of paid sick leave annually.
Even for those Federal Contractors that already offer paid time off to their existing workforces, now would be a good time to review your policies and procedures to ensure they satisfy the requirements of the E.O. and Final Rule. In addition to specific requirements related to leave accrual rates, certification and use, there are carryover provisions and other stringent administrative obligations, recordkeeping, contract clause and notice requirements, and anti-retaliation prohibitions. For compliance assistance, consult counsel.

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

Important Notice and Disclaimer

Important Notice and Disclaimer

The materials and information available at bpmlawyers.blogspot.com are provided for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. Recipients of content from this site, clients or otherwise, should not act or refrain from acting on the basis of any content included in this Blog without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this Blog is general information and may not reflect current legal developments, verdicts or settlements. Benton Potter & Murdock expressly disclaims all liability with regard to actions taken or not taken based upon any or all of the contents of this Blog. Use of and access to this Web site/blog or any of the e-mail links contained within the site do not create an attorney-client relationship between (a) the authors, editors or Benton Potter & Murdock, and (b) the user or browser. The opinions expressed at or through this site/blog are the opinions of the authors of each specific post and may not reflect the opinions of the editors, Benton Potter & Murdock or any of its attorneys or clients. Unsolicited information sent to Benton Potter & Murdock by persons who are not already clients of the firm is not subject to any duty of confidentiality on the part of the firm.

Barbara L. Johnson to speak at 2016 Minority In-House Counsel Association Conference

Barbara L. Johnson, Counsel with Benton, Potter & Murdock has been invited to speak about Going Global: Developing International Expertise at the 2016 Minority In-House Counsel Association Conference. The Conference will be held on October 25-26 at the Metropolitan Club in Chicago, Illinois. This conference is designed to capture the variety and experience of minority in-house and corporate counsel. The conference will feature a luncheon presentation by Paula Boggs and N. Cornell Boggs, III, who will discuss “What Do I Need to Start Feeding My Kids Now to Make GCs Out of Them,” as well as presentations by other general counsel from around the country. Benton, Potter & Murdock is pleased to be a sponsor of the 2016 MIHCA Conference. If you are interested in attending or sponsoring this event, you may contact Robert. Johnson@MyMIHCA.org.

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.

Lawsuits Raise Eleventh Hour Challenges to DOL Final Rule On FLSA Overtime Regulations, by Debbi Cohen

With the Department of Labor’s (DOL’s) Final Rule updating the Fair Labor Standards Act (FLSA) overtime regulations scheduled to take effect barely two months from now on December 1, two lawsuits have just been filed seeking to stop the Rule from being implemented as planned. Both lawsuits, one of which was filed by 21 primarily Republican led states, and the other of which was filed by a consortium of business groups including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Retail Federation, were filed in the same federal court in the Eastern District of Texas. While each group of plaintiffs makes legal arguments specific to its own circumstances, both groups essentially attack the wide-scale workforce restructuring compliance with the New Rule will require along with the potential for hardship they argue could result from new labor costs and decreased workforce flexibility, particularly for smaller employers or organizations with budgetary constraints.
Shortly after the lawsuits were filed, the DOL issued a statement in which Secretary of Labor Thomas E. Perez stated, “We are confident in the legality of all aspects of our final overtime rule.”

As discussed in a prior blog post, the Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional (“white collar”) workers to be exempt. Key provisions of the Final Rule include:

1. It sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, which is currently the South, at $913 per week or $47,476 annually for a full-year worker;

2. It sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally, which is currently $134,004; and

3. It establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

The Final Rule also amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new salary level.

Even though it is highly likely that the lawsuits were filed in Texas because the court there is viewed as both potentially favorable to the plaintiffs in these cases and known to move quickly, employers should not stop preparations they may have already begun, if any, to comply with the new regulations, as there has been no change as yet in the December 1 effective date of the Final Rule. For specific questions you may have regarding ongoing compliance efforts, consult counsel.

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

Important Legal Notice and Disclaimer

Important Announcement from the National Association of Minority and Women Owned Law Firms (NAMWOLF)

Benton Potter & Murdock is a proud member of the National Association of Minority and Women Owned Law Firms (NAMWOLF). On September 21, 2016, NAMWOLF released the following landmark announcement:

NAMWOLF is pleased to announce that effective immediately, LGBT owned firms that are NGLCC-certified firms and meet our other law firm admission criteria are eligible to be member firms in our organization. Please review www.namwolf.org for more detailed information regarding our law firm admission criteria. We remain dedicated to assessing and maximizing opportunities for all our diverse member firms. For questions, please contact NAMWOLF's CEO, Joel Stern at joel_stern@namwolf.org.

Join Benton Potter & Murdock, and Atkinson-Baker Court Reporters on the National Mall for the Opening Ceremony of the National Museum of African American History and Culture

In conjunction with Atkinson-Baker Court Reporters, Benton Potter & Murdock will be gathering on the National Mall to enjoy the opening ceremony events for the National Museum of African American History and Culture (NMAAHC) on Saturday, September 24th, 2016. Please join us for the ceremonies.

For those of you planning on attending the Opening Ceremony of the NMAAHC on Sept 24th, Benton Potter & Murdock, along with Atkinson-Baker Court Reporters, will be meeting at Café du Parc* between 8:30-9:00 am and will venture forth into the National Mall at 9:30 am to find a good place from which to witness the ceremony. If you plan to join us, please shoot an email to John Murdock at jm(at)bpmlawyers.com or call 703.992.6950.

Please join us. All friends and family members are welcome - we hope to see you there!

*CAFE DU PARC (LOCATED IN THE WILLARD INTERCONTINENTAL HOTEL)
1401 Pennsylvania Avenue N.W. Washington, D.C. 20004

(Photos of the museum are Smithsonian Museum images.)

Benton, Potter & Murdock Participating in 2016 NAMWOLF Annual Meeting & Law Firm Expo – September 14-17, 2016, in Houston!

Benton, Potter & Murdock is very excited to be participating in the 2016 NAMWOLF Annual Meeting & Law Firm Expo in Houston, Texas September 14-17, 2016.

The NAMWOLF Annual Meeting & Law Firm Expo is a three-day conference providing unique opportunities to connect corporate counsel from Fortune 1000 companies and minority and women owned law firms. The conference features NAMWOLF’s signature event, the Law Firm Expo, which provides an opportunity for In-House Counsel to meet with the Nation’s top minority and women owned law firms in a relaxed networking environment.

Benton Potter & Murdock is proud to be part of this event. Join us next week at the Hilton Americas-Houston for your opportunity to meet with the top minority and women owned law firms in the country, as well as in-house counsel from some of the Nation’s leading corporations.

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.

Important Legal Notice and Disclaimer

FAIR PAY AND SAFE WORKPLACES EXECUTIVE ORDER

ALERT FOR FEDERAL GOVERNMENT CONTRACTORS

By:​ Kathy C. Potter, Esq.

With the issuance of the Fair Pay and Safe Workplaces Executive Order 13673, signed by President Obama on July 31, 2014, the cost of doing business with the federal government will continue to grow as the new requirements the Executive Order places on contractors and subcontractors go into effect. The Executive Order is designed to crack down on “federal contractors who put workers’ safety and hard-earned pay at risk” according to a White House Fact Sheet, which acknowledges that the vast majority of federal contractors play by the rules. The new obligations imposed by the Executive Order will (1) require contractors to disclose violations of certain labor and employment laws to contracting agencies; (2) require contractors to flow down the disclosure requirements to subcontractors; (3) require contractors to consider the subcontractor’s record and business ethics before making a subcontract award; (4) require contractors to provide certain painformation to employees to increase pay transparency; and (5) prohibit the use of pre-dispute arbitration clauses for certain employment-related disputes.

KEY PROVISIONS OF THE EXECUTIVE ORDER

1.​ Contractor Disclosure Requirements

Pursuant to the Executive Order, contractors seeking contracts for goods and services, including construction contracts, where the estimated value exceeds $500,000 will be required to disclose any administrative merits determination, arbitral award or decision, or civil judgment rendered against the contractor within the preceding three years for violations of the following laws (“labor laws”):

1. The Fair Labor Standards Act;

2. The Occupational Safety and Health Act of 1970;

3. The Migrant and Seasonal Agricultural Work Protection Act;

4. The National Labor Relations Act;

5. The Davis-Bacon Act;

6. The Service Contract Act;

7. Executive Order 11246 dated September 24, 1965 (Equal

Employment Opportunity);

8. Section 503 of the Rehabilitation Act of 1973;

9. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974;

10. The Family and Medical Leave Act;

11. Title VII of the Civil Rights Act of 1964;

12. The Americans with Disabilities Act of 1990;

13. The Age Discrimination in Employment Act of 1967;

14. Executive Order 13658 dated February 12, 2014 (Establishing a

Minimum Wage for Contractors); and

15. Equivalent state laws, as defined in guidance to be issued by

the Department of Labor.

Contracting agencies must consider any disclosures from a prospective contractor in making responsibility determinations and must provide the contractor with the opportunity to disclose any steps taken to address the violation or improve compliance with the labor laws. Post award, contractors will be required to update their information every six months during contract performance on a website that is to be developed by the General Services Administration. If information regarding covered labor law violations is disclosed during contract performance, a contracting officer, in consultation with the agency’s Labor Compliance Advisor, a new position to be added to all agencies, shall consider whether action is necessary. 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.”

2.​ Flow-Down Requirements

Contractors will be required to “flow down” disclosure obligations to any subcontract for which the estimated value of the supplies and services acquired by the subcontract exceeds $500,000 and that is not for commercially available off-the-shelf items. For covered contracts, subcontractors will have to disclose to contractors the same information contractors are required to disclose to procuring agencies and update the information every six months.

The Executive Order requires contractors to consider the information submitted by the subcontractor in determining whether a subcontractor is a responsible source that has a satisfactory record of integrity and business ethics before awarding a subcontract, except for subcontracts that are awarded or become effective within five days of contract execution, in which case the information must be reviewed within thirty days of subcontract award.

If information required to be disclosed is brought to the attention of the contractor by its subcontractor or similar information is obtained through other sources, then the contractor shall consider whether action is necessary, including where appropriate, sending the information to the agency suspending and debarring official. The Executive Order requires that a contracting officer, Labor Compliance Advisor, and the Department of Labor be available for consultation with a contractor regarding appropriate steps it should consider.

3.​ Transparency

The Executive Order requires contractors to give their employees who are performing work under a contract for whom the contractor is required to maintain wage records under the Fair Labor Standards Act (“FLSA”), the Davis-Bacon Act, and the Service Contract Act information concerning their hours worked, overtime hours, pay, and any additions to or deductions made from their pay. If the contractor informs individuals exempt from FLSA overtime compensation requirements of their overtime exempt status, the employer need not include a record of hours worked for those employees. Where an individual performing work under a covered contract or subcontract is an independent contractor, the contractor must provide a document informing the individual of this status.

4.​ Anti-Arbitration Provision

The Executive Order precludes contractors having contracts exceeding $1 million, other than those contracts or subcontracts for commercial items or commercially available off-the-shelf items, from using pre-dispute arbitration agreements for 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 except where there is voluntary consent of employees or independent contractors after such disputes arise. This preclusion does not apply to contracts for the acquisition of commercial items or commercially available off-the-shelf items. The anti-arbitration provision does not apply to arbitration agreements in place prior to the contractor bidding on a contract covered by the Executive Order, unless the terms of the existing agreement can be changed by the employer or the agreement is renegotiated or replaced. The provision also does not apply to employees covered by a collective bargaining agreement. The prohibition of pre-dispute arbitration agreements must be flowed down to subcontractors where the estimated value of the supplies and/or services to be acquired exceeds $1 million and the subcontract is not for the acquisition of commercial items or commercially available off-the-shelf items.

5.​ Effective Date

The Executive Order will apply to all solicitations for contracts as set forth in any final rule issued by the FAR Council after considering all public comments, as appropriate. It is expected that implementation on new contracts will be done in stages throughout 2016, according to a White House Fact Sheet.

NEXT STEPS TO TAKE FOR CONTRACTORS

Pending publication of the implementing regulations, contractors can take several steps in preparation for these new disclosure requirements. Contractors would be advised to review their policies and procedures to ensure compliance with labor laws and provide any additional compliance training where needed. In addition, contractors that have arbitration agreements with their employees or are considering using arbitration agreements should evaluate them now to determine if they qualify for the exclusions discussed above.

Benton Potter & Murdock, P.C., will continue to monitor developments and will provide an updated alert when the proposed regulations are published or other developments occur. If you have any questions about the Executive Order and what it could mean for your business, please contact Kathy Potter, a partner with Benton Potter & Murdock, P.C., at kcp@bpmlawyers.com.

This Alert is provided by Benton Potter and Murdock, P.C., for informational purposes only, and should in no way be relied upon or construed as legal advice. Receipt of this Alert does not create an attorney-client relationship. Recipients of this Alert should not act or refrain from acting on the basis of any information included in this Alert without first consulting with legal counsel. This Alert may be considered Attorney Advertising in some jurisdictions. ©2014 Benton Potter & Murdock, P.C.

Important News for Employers: The EEOC and FTC Issue New Background Check Guidance

By Kimberly S. Greenspan, Esq.

On March 10, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Federal Trade Commission (FTC) partnered to issue, for the first time, joint informal guidance on employment background checks. Two documents came out of the agencies’ collaboration: "Background Checks: What Employers Need to Know" and "Background Checks: What Job Applicants and Employees Should Know."

The unique intersection of anti-discrimination laws and the Fair Credit Reporting Act (FCRA) have resulted in these publications which define the rights and responsibilities governing employers, employees and job applicants when employers use background checks in making personnel decisions.

The EEOC enforces federal anti-discrimination laws, and emphasizes that any time an employer uses an applicant’s or employee’s background information to make an employment decision, the employer must comply with those laws. The FTC enforces the Fair Credit Reporting Act (FCRA), which protects the privacy and accuracy of the information in credit reports, and therefore regulates how background checks are conducted and used. If an employer runs a background check through a company in the business of compiling background information, the employer must comply with the FCRA.

Below are some of the main points that an employer should consider as a result of this guidance:

​Fair Credit Reporting Act

The FCRA requires employers who get background information (i.e., a credit or criminal background report) from a company in the business of gathering background information, to follow specific procedures:

1. Employers must provide written notice to the applicant or employee that it might use the information to make decisions about that person’s employment. This notice must be in a stand-alone format, and cannot be included in an employment application.

2. If an employer asks a company to provide an investigative report, employers must tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.

3. Employers need written permission from job applicants and employees before conducting background checks. This information can be part of the notification document referred to above. If the employer plans on conducting background checks throughout the person’s employment, that employer should make this information clear and conspicuous in the notification document.

4. The employer must certify to the company from which it is getting the report that it notified the applicant or employee, got that person’s permission to conduct the background check, and complied with all FCRA requirements. The employer must also certify that it will neither unlawfully discriminate, nor misuse the information in violation of federal or state equal opportunity laws or regulations.

Once the background information is gathered, the FCRA imposes additional requirements on the employer before that information can be used to take an adverse action. An employer must give the applicant or employee a notice that includes a copy of the consumer report it relied on to make the decision, and a summary of his or her rights under the FCRA. Providing the individual with advance notice allows the applicant or employee the chance to review the report and explain any negative information.

After the adverse employment action is taken, the employer must tell the applicant or employee that he or she was rejected because of the information in the report; the name, address, and phone number of the company that sold the report; and that the company selling the report did not make the hiring decision, and cannot give specific reasons for the decision. This information may be provided orally, in writing, or electronically. Furthermore, the applicant or employee has a right to dispute the accuracy or completeness of the report and to obtain an additional free report from the reporting company within 60 days.

Federal Anti-Discrimination Laws

Federal anti-discrimination laws make it illegal for an employer to use any background information that it receives to discriminate against an employee or applicant for employment. Therefore, it is illegal to discriminate against a person on the basis of race, color, national origin, sex, religion, age (40 or older), disability, or genetic information, including family medical history, when requesting or using background information for employment, irrespective of the information’s source.

The guidance advises employers against basing employment decisions on background problems that may be more common among individuals in a particular protected group. Should a background check policy disproportionately impact members of particular protected group, employers should ensure that the policy is job-related and consistent with business necessity. Employers are well-served to seek the same background information from all individuals, rather than only checking the background of a particular subset of employees or applicants.

Generally, an employer should not try to get an applicant’s or an employee’s genetic information, which includes family history, and if that information is obtained, it should not be used to make an employment decision. Medical questions cannot be asked before a conditional job offer has been made, and once a person has started to the job, the employer cannot ask medical questions unless there is objective evidence that the employee is unable to do the job or poses a safety risk due to a medical condition. To be compliant with the Americans with Disabilities Act, employers may need to make exceptions for disability-related problems that surface during a background check.

Records

Generally, employers must preserve personnel or employment records for one year after the records were made, or after a personnel action was taken, whichever comes later. The Department of Labor extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000. Once an applicant or employee files a charge of discrimination, the employer must maintain the records until the conclusion of the case.

Conclusion

Despite the requirements or suggestions enumerated above, employers should not be dissuaded from using background checks. It is not illegal for an employer to ask a job applicant about his or her background or to require a background check, provided the employer does not unlawfully discriminate. Finally, employers should review their state and local laws regarding background reports or information, as there may be additional regulations beyond that required by federal law.

Benton Potter & Murdock's Boyd K. Rutherford Runs for Maryland Lt. Governor!

Benton Potter & Murdock, P.C., is proud to report that Boyd Rutherford, of Counsel with the firm, is running for the Republican nomination for Lieutenant Governor for the State of Maryland. Larry Hogan, Jr., announced Boyd as his running mate when he announced his own candidacy for Maryland Governor. Boyd and Hogan previously worked together as cabinet Secretaries in the Administration of Governor Robert L. Ehrlich, where Boyd served as the Secretary of the Department of General Services.

Prior to serving in the Ehrlich Administration, Boyd served as the Associate Administrator for the U.S. General Services Administration, where he directed both the Office of Small Business Utilization and the Office of Performance Improvement. After his Maryland service, Boyd returned to the Federal government as the Assistant Secretary for Administration in the U.S. Department of Agriculture. In that role, he served as the Department’s Chief Acquisition Officer, Chief Human Capital Office, the Senior Energy and Environmental Official, as well as the Department’s Freedom of Information Act Officer.

Boyd’s inclusion on the Gubernatorial ticket has been termed “a solid pick” (Professor Todd Eberly, St. Mary’s College ) and as “enhancing the ticket” (Maryland Reporter).

For more information, please contact John Murdock at jm@bpmlawyers.com

The IDIQ "Contract" -- It is not a Contract until a Task or Delivery Order makes it One

By Janine S. Benton, Esq.

A U.S. Government agency uses indefinite-delivery, indefinite quantity ("IDIQ")* contracts to purchase supplies and/or services when it does not know the precise quantities of goods, or times/amounts of services at the time of IDIQ award. Under the IDIQ, the agency does not promise to purchase all of its needed supplies and/or services from the awardee. Instead, the agency only agrees to, generally, purchase a minimum amount that is identified in the IDIQ document. This amount may be small, but it must be more than "de minimis. "**

Most importantly, contractors must recognize that an IDIQ is not considered a contract until a task order or delivery order has been placed against it. In fact, an IDIQ is often called a "hunting license" that gives contractors only the right to hunt and trap task or delivery orders. Contractors also should be aware that an IDIQ may not be fully funded so that it may be the case that no task or delivery orders are ever placed against it. Accordingly, IDIQ contractors should recognize that their ability to obtain remedies through submission of claims under the Contract Dispute Act may be very limited unless those claims relate to task or delivery orders.

This limitation also extends to bid protests. While GAO has jurisdiction over bid protests concerning the initial IDIQ procurement, under 41 USC 4106(f), its jurisdiction over IDIQ task or delivery order competitions is limited to situations where: (1) the protest challenges the scope, period, or maximum value of the underlying contract; or (2) the task or delivery order is valued at more than $10 million.

*IDIQ contracting is governed by Subpart 16.5 of the Federal Acquisition Regulation ("FAR").

** "De minimis," as used in regard to IDIQ contracts, means a small amount, but not so small as to be inconsequential.

Ms. Benton is a partner with Benton Potter & Murdock, P.C. She may be reached via jb(at)bpmlawyers.com.