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On December 30, 2022, New York Governor signed into law Labor Law Section 240-i, establishing a registration system for contractors and subcontractors engaged in public work and covered private projects in New York. This law will require contractors to register with the New York State Department of Labor (the “Department of Labor”) every two years, by submitting various disclosures about their businesses, in order to ensure that contractors do not have previous labor law violations, and will abide by New York labor laws and regulations, including prevailing wage requirements. The Department of Labor will establish and maintain a public on-line system where registrations and disclosures are available. Continue Reading New Registration Requirement for Contractors and Subcontractors Performing Public Works and Covered Private Projects in New York

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This special edition of the Fastest 5 Minutes podcast covers recent developments related to the Infrastructure Bill and Inflation Reduction Act, and key areas to watch in 2023. The podcast features a cross practice team of Crowell partners, so we offer perspectives from tax, energy, labor and employment, government contracts, ESG, environmental, and government affairs.

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As outlined in our prior client alert, the Office of Federal Contract Compliance Programs (the “OFCCP”) published a Notice in the Federal Register to federal contractors of a Freedom of Information Act (“FOIA”) request for disclosure of Type 2 Consolidated EEO-1 Report data submitted by all federal contractors and first-tier subcontractors from 2016 until

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Responding to significant uproar from the federal contracting community, on August 18, 2022, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a revised version of its Directive 2022-01 – Advancing Pay Equity Through Compensation Analysis, which was originally issued on March 15, 2022.  The Revised Directive is, per the OFCCP, intended to clarify its earlier guidance addressing federal contractors’ regulatory obligation to evaluate “compensation systems” as part of their affirmative action programming, and the documentation the OFCCP expects contractors to provide to the OFCCP regarding their analyses.  Most importantly, the Revised Directive steps back from the position the Agency took in the March 15 Directive with regard to the applicability of the attorney-client privilege to analyses contractors are required to undertake pursuant to the Agency’s regulations.  The Agency had previously taken the position that contractors conduct undefined “pay equity” analyses pursuant to the Agency’s regulatory obligation and, as a result, could not assert attorney-client privilege over such analyses.  Continue Reading OFCCP Issues Revised Directive Addressing Privilege Concerns, But Significant Concerns Remain

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On August 18, 2022, the FAR Council issued a proposed amendment to the FAR implementing Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects, which requires the use of project labor agreements (PLAs) on any large-scale federal construction projects valued at or above $35 million unless an exception applies.  The Order, and the proposed rule, also give agencies discretion to use PLAs on projects under that $35 million threshold. 

In addition to expanding definitions of “construction,” “labor organization,” and “large-scale construction project” to align with E.O. 14063, the proposed rule would revise FAR 22.503 to reflect the change in policy that mandates agencies to require the use of PLAs when awarding large-scale federal construction contracts—including individual orders under Indefinite Delivery, Indefinite Quantity contracts—unless an exception applies.  The proposed rule would make the PLA requirement a mandatory flow-down.  The proposed rule would also allow agencies to include any additional agency-specific requirements in a PLA through FAR 22.504(b)(6), and would strike the current FAR 22.504(c), which grants agencies discretion to specify PLA terms and conditions. Continue Reading FAR Council Proposes New Rule on Project Labor Agreements for Major Construction Projects

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The Department of Labor (“DOL”) recently announced in a July 29, 2022 Change Order notice that the Wage and Hour Division (“WHD”) had revised the Field Operations Handbook (“FOH”) by deleting the exemption under the Service Contract Act (“SCA”) for federal contracts to operate Job Corps Centers.  Prime contractors and subcontractors operating these centers will now be subject to the SCA and FAR 52.222-41, Service Contract Labor Standards, according to DOL. 

The practical effect of this change is that covered contractors must pay the minimum wages and “bona fide” fringe benefits mandated by the SCA to all covered workers, which includes workers who are “non-exempt” under the Fair Labor Standards Act.  The required wages and fringe benefits for these workers are set forth in wage determinations that are incorporated into the applicable contract by the contracting agency.  Higher tier contractors must also flow down the SCA Clause (FAR 52.222-41) and all applicable wage determinations to lower tier contractors.  All covered contractors must meet the SCA’s posting and recordkeeping requirements.  See 29 CFR 4.183, Employees must be notified of compensation required; 29 CFR 4.184, Posting of notice; 29 CFR 4.185, Recordkeeping requirements.    Continue Reading Job Corps Center Prime Contractors Will Now be Subject to the Service Contract Act Requirements

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We have already seen many changes from the new administration and it seems more and more are happening every day.  What more can you expect and how will this effect government contractors?  The team of Crowell & Moring lawyers from our Government Contracts, Labor & Employment, White Collar, Corporate and Privacy & Cybersecurity practice groups