Photo of Trina Fairley BarlowPhoto of Peter J. EyrePhoto of Kris D. MeadePhoto of Christine B. HawesPhoto of Liam O'Reilly

On August 3, 2020, President Donald Trump issued an Executive Order framed as “Aligning Federal Contracting and Hiring Practices With the Interests of American Workers.” The Order declares the “policy of the executive branch to create opportunities for United States workers to compete for jobs, including jobs created through Federal contracts,” and directs federal agencies to engage in two distinct reviews to assess how current practices align with that policy.

First, the Order directs the head of each federal contracting agency to review the extent to which “contractors” and “subcontractors” – undefined in the Order – utilize temporary foreign labor for contracts performed in the United States, as well as whether services previously performed in the United States are being outsourced for performance in foreign countries. Agencies are further directed to assess any effect the use of such foreign labor hiring and/or offshoring practices has on opportunities for U.S. workers, the eligibility of affected workers for Trade Adjustment Assistance, and national security interests. Finally, each agency must review its own employment policies to ensure compliance with policies requiring federal hiring of U.S. persons. Within 120 days of the Order, Agencies are required to submit a report to the Office of Management and Budget summarizing the results of this review and recommending corrective actions if necessary, timeframes for implementation of such corrective actions, as well as any Presidential actions that may be appropriate.

Second, the Order also directs the Secretaries of Labor and Homeland Security to take action, as appropriate and consistent with applicable law, to protect U.S. workers from adverse effects caused by employment of H-1B visa holders, including by requiring employers and “secondary employers” to file certifications required by the Immigration and Nationalization Act (INA) regarding the impact of hiring an H-1B visa holder. The administration has indicated that its goal is to restrict scenarios where a contractor outsources services to H-1B workers that would have otherwise been performed by US employees of the contractor; the intent would be for the outsourcing contractor, as the “secondary employer” of the workers performing the work, to also certify pursuant to the INA that the hiring of that employee has not impacted US citizen employees. This would be in in addition to the certification provided by the worker’s actual employer. It is unclear whether extending the certification requirement to “secondary employers” would address this identified issue.

This Executive Order follows a series of “Buy American and Hire American” orders issued over the past years, and reflects the current administration’s consistent emphasis on domestic sourcing of supplies and services. The administration has indicated that this Executive Order is a continuation of other efforts undertaken during the COVID-19 pandemic to limit immigration and protect American workers.

Like the previous actions, the present Executive Order provides little guidance regarding how agencies should conduct the contemplated reviews, omitting both the types of data agencies should rely upon and what authorities contracting agencies should rely upon to collect additional data from federal contractors and subcontractors. Accordingly, the potential impact on operations and customer relationships for federal contractors and subcontractors remains to be seen. Crowell & Moring intends to monitor agency implementation of this Order and continue to keep our clients updated regarding developments that may impact their business

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Photo of Trina Fairley Barlow Trina Fairley Barlow

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive…

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive Orders which impact employers who are also government contractors. Trina’s experience includes advising federal contractors on the requirements of the Service Contract Act, as well as the Davis Bacon Act, and assisting clients with developing compliance strategies that reduce legal risks. In addition, Trina has defended and advised clients in False Claim Act (FCA) whistleblower retaliation cases and has led large internal investigations that frequently encompass a complex combination of labor and employment, government contracts, and ethics and compliance issues. In connection with such investigations and in other contexts, clients also frequently call upon Trina to assist them with developing compliant policies and internal practices that achieve business objectives while simultaneously reducing potential legal risks and exposure.

Photo of Peter J. Eyre Peter J. Eyre

Peter J. Eyre is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He is also a member of the firm’s Management Board. Peter was named to BTI Consulting Group’s list of “Client Service All-Stars” in 2016, 2017, and 2019 and…

Peter J. Eyre is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He is also a member of the firm’s Management Board. Peter was named to BTI Consulting Group’s list of “Client Service All-Stars” in 2016, 2017, and 2019 and has been named an Acritas Star, Acritas Stars Independently Rated Lawyers (2016, 2017, 2019). He is nationally ranked by Chambers USA in Government Contracts since 2014, and by Super Lawyers since 2017.

Photo of Kris D. Meade Kris D. Meade

Kris D. Meade is co-chair of Crowell & Moring’s Labor & Employment Group. He is also a member of the firm’s Management Board and Executive Committee. He counsels and represents employers in the full range of employment and traditional labor law matters, including…

Kris D. Meade is co-chair of Crowell & Moring’s Labor & Employment Group. He is also a member of the firm’s Management Board and Executive Committee. He counsels and represents employers in the full range of employment and traditional labor law matters, including individual and class action lawsuits filed under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, ERISA, and companion state statutes. Kris represents employers in connection with union organizing campaigns, collective bargaining, labor arbitrations, and unfair labor practice litigation. In 2020, Chambers USA recognized Kris as a leading labor and employment lawyer.

Photo of Christine B. Hawes Christine B. Hawes

Christine B. Hawes is a counsel in Crowell & Moring’s Labor & Employment Group. Christine’s practice focuses on litigation of individual and class actions arising in all areas of labor and employment law, including:

  • Wage-and-hour laws, including the Fair Labor Standards Act, the

Christine B. Hawes is a counsel in Crowell & Moring’s Labor & Employment Group. Christine’s practice focuses on litigation of individual and class actions arising in all areas of labor and employment law, including:

  • Wage-and-hour laws, including the Fair Labor Standards Act, the Service Contract Act, and state and local laws
  • Title VII and state anti-discrimination laws
  • Americans with Disabilities Act
  • Family and Medical Leave Act and related state statutes
  • Federal and state whistleblower statutes, including the False Claims Act
  • Alleged wrongful termination
  • Non-competition agreements and other employee contracts
  • Misappropriation of trade secrets claims

Christine also provides counseling to clients on a wide variety of employment issues, including personnel policies, non-competition/non-solicitation agreements, employee discipline, contract disputes, and alleged retaliation under the False Claims Act, Title VII, the FLSA, and state whistleblower statutes. Christine frequently advises clients on and conducts internal investigations that frequently address employment, ethics, and compliance issues.  Additionally, Christine assists clients with affirmative action compliance, preparing affirmative action plans, analyzing compensation practices, and providing counseling in connection with Office of Federal Contract Compliance Programs audits.

Photo of Liam O'Reilly Liam O'Reilly

William B. O’Reilly is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Government Contracts Group.

Liam assists clients with all phases of government contracting, including contract formation and award controversies, performance counseling, and claims…

William B. O’Reilly is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Government Contracts Group.

Liam assists clients with all phases of government contracting, including contract formation and award controversies, performance counseling, and claims and disputes litigation. His practice includes representing clients in bid protests before the Government Accountability Office and U.S. Court of Federal Claims. Liam also regularly advises clients on supply chain risk management, addressing issues such as cybersecurity, country of origin and domestic preferences, and counterfeit part detection and avoidance, as well as conducting internal investigations and mandatory disclosures for performance breaches and potential violations of the False Claims Act (FCA).