By: Kristin R.B. White and Eric Whytsell
Last July, Executive Order 13673, “Fair Play and Safe Workplaces” required contractors to disclose certain safety violations and directed procuring agencies to consider those violations as part of the determination of whether a contractor has a satisfactory record of integrity and business ethics. It also made clear that, while each contractor’s disclosed violations are assessed on a case?by?case basis, contractors could be declared ineligible for contract awards in excess of $500,000.00 if they had committed serious, repeated, willful, or pervasive labor law violations. However, the Department of Labor (DOL) recently proposed Guidance on the Executive Order that allows contractors to counteract the impact of their safety violations by establishing injury and illness prevention programs (I2P2) or other kinds of safety and health programs.
The proposed Guidance identifies implementation of an I2P2 program as one of the mitigating factors for agencies to consider when determining a contractor’s eligibility for a contract award, especially in cases of violations that might otherwise be considered repeated or pervasive. Under an I2P2 program, employers must assess the hazards in their workplace and document successful resolution of any identified safety hazards. Such programs also entail continual evaluation and updating of safety conditions, including involving workers in the process.
The Guidance lists a number of other mitigating factors for agencies to consider in this context. These include the extent to which the contractor has fixed the alleged violations, made efforts to prevent similar violations in the future, or shown good faith in trying to follow the law. The number of violations the contractor has received, whether that number is low relative to its size, and the length of time that has elapsed between violations will also be considered.
DOL’s proposed Guidance identifies three categories of violations that federal contractors must report:
- Administrative merits determinations, which include, among other things, all OSHA or state plan citations, imminent danger notices and notices of failure to abate (In order to be a reportable OSHA violation, it must be a serious, repeat or willful violation. Other-than-serious violations would not be reportable);
- Civil judgments, including any judgment or order entered by a federal or state court in which the court found a labor law violation; and
- Arbitral awards, which encompass any order by an arbitrator who determines that the contractor violated a labor law.
Any such violations issued during the three years preceding a bid must be reported, even if the contractor was not performing or bidding on a federal contract at the time. If a citation is later reversed or vacated, the contractor does not need to report it, or any subsequent violations that flow from it. However, if a review body, such as the Occupational Safety and Health Review Commission, reinstates an original violation, then both that citation and any subsequent violations must be reported.
The Executive Order also requires contactors to gather the same information regarding violations from their subcontractors. The Guidance anticipates that contractors will incorporate into their covered subcontracts the requirement that the subcontractor disclose any administrative merits determinations, civil judgments, or arbitral awards or decisions rendered against the subcontractor within the preceding three-year period for violations of any of the Labor Laws.
Comments on the proposed Guidance were originally due on or before July 27, 2015, but last week the response period was extended to August 14, 2015. The notice of extension states that DOL will consider all comments received between the date of publication of the proposed guidance through the close of the extended comment period. Unlike proposed regulations, however, proposed Guidance does not require the agency to respond to any comments it receives.
Jackson Kelly’s Safety and Health Practice Group is available to assist contractors with questions about establishing or maintaining an I2P2 program or other kinds of safety and health programs.
Kristin R.B. White and Eric Whytsell are responsible for the contents of this Article.
© Jackson Kelly PLLC 2015