PART 471—OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS; NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS Authority: 40 U.S.C. 101 et seq.; Source: 75 FR 28397, May 20, 2010, unless otherwise noted. Subpart A—Definitions, Requirements for Employee Notice, and Exceptions and Exemptions § 471.1 What definitions apply to this part? Construction Construction work site Contract Contracting agency Contractor Department Director of OFCCP Director of OLMS Employee notice clause Government Government contract (1) Agreements in which the parties stand in the relationship of employer and employee; and (2) Federal financial assistance, as defined in 29 CFR 31.2. Labor organization Modification of a contract Order Executive Order Person Prime contractor Related rules, regulations, and orders of the Secretary of Labor, Secretary Subcontract (1) For the purchase, sale or use of personal property or non-personal services that, in whole or in part, is necessary to the performance of any one or more contracts; or (2) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken or assumed. Subcontractor Union United States § 471.2 What employee notice clause must be included in Government contracts? (a) Government contracts. (b) Inclusion by reference. (c) Adaptation of language. (d) Physical posting of employee notice. (1) In conspicuous places in and about the contractor's plants and offices so that the notice is prominent and readily See (2) Where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract. An employee shall be considered to be so engaged if: (i) The duties of the employee's position include work that fulfills a contractual obligation, or work that is necessary to, or that facilitates, performance of the contract or a provision of the contract; or (ii) The cost or a portion of the cost of the employee's position is allowable as a cost of the contract under the principles set forth in the Federal Acquisition Regulation at 48 CFR Ch. 1, part 31: Provided, That a position shall not be considered covered by this part by virtue of this provision if the cost of the position was not allocable in whole or in part as a direct cost to any Government contract, and only a de minimis (less than 2%) portion of the cost of the position was allocable as an indirect cost to Government contracts, considered as a group. (e) Obtaining a poster with the employee notice. http://www.olms.dol.gov. (f) Electronic postings of employee notice. § 471.3 What exceptions apply and what exemptions are available? (a) Exceptions for specific types of contracts. (1) Collective bargaining agreements as defined in the Federal Service Labor-Management Relations Statute, entered into by an agency and the exclusive representative of employees in an appropriate unit to set terms and conditions of employment of those employees. (2) Government contracts that involve purchases below the simplified acquisition threshold set by Congress under the Office of Federal Procurement Policy Act. Therefore, the employee notice clause need not be included in government contracts for purchases below that threshold, provided that (i) No agency or contractor is permitted to procure supplies or services in a manner designed to avoid the applicability of the Order and this part; and (ii) The employee notice clause must be included in government contracts for indefinite quantities, unless the contracting agency or contractor has reason to believe that the amount to be ordered in any year under such a contract will be less than the simplified acquisition threshold set in the Office of Federal Procurement Policy Act. (3) Government contracts resulting from solicitations issued before the effective date of this rule. (4) Subcontracts of $10,000 or less in value, except that contractors and subcontractors are not permitted to procure supplies or services in a manner designed to avoid the applicability of the Order and this part. (5) Contracts and subcontracts for work performed exclusively outside the territorial United States. (b) Exemptions for certain contracts. (1) The application of any of the requirements of this part would not serve its purposes or would impair the ability of the Government to procure goods or services on an economical and efficient basis; or (2) Special circumstances require an exemption in order to serve the national interest. (c) Procedures for requesting an exemption and withdrawals of exemptions. § 471.4 What employers are not covered under this part? (a) The following employers are excluded from the definition of “employer” in the National Labor Relations Act (NLRA), and are not covered by the requirements of this part: (1) The United States or any wholly owned Government corporation; (2) Any Federal Reserve Bank; (3) Any State or political subdivision thereof; (4) Any person subject to the Railway Labor Act; (5) Any labor organization (other than when acting as an employer); or (6) Anyone acting in the capacity of officer or agent of such labor organization. (b) Additionally, employers exclusively employing workers who are excluded from the definition of “employee” under the NLRA are not covered by the requirements of this part. Those excluded employees are employed: (1) As agricultural laborers; (2) In the domestic service of any family or person at his home; (3) By his or her parent or spouse; (4) As an independent contractor; (5) As a supervisor as defined under the NLRA; (6) By an employer subject to the Railway Labor Act; or (7) By any other person who is not an employer as defined in the NLRA Appendix A to Subpart A of Part 471—Text of Employee Notice Clause “1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form, and containing such content as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically. The “Secretary's notice” shall consist of the following: “Employee Rights Under The National Labor Relations Act” “The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board, the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace. “Under the NLRA, you have the right to: • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. • Form, join or assist a union. • Bargain collectively through representatives of employees' own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions. • Discuss your terms and conditions of employment or union organizing with your co-workers or a union. • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking • Strike and picket, depending on the purpose or means of the strike or the picketing. • Choose not to do any of these activities, including joining or remaining a member of a union. “Under the NLRA, it is illegal for your employer to: • Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms. • Question you about your union support or activities in a manner that discourages you from engaging in that activity. • Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity. • Threaten to close your workplace if workers choose a union to represent them. • Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support. • Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances. • Spy on or videotape peaceful union activities and gatherings or pretend to do so. “Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to: • Threaten you that you will lose your job unless you support the union. • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union. • Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall. • Cause or attempt to cause an employer to discriminate against you because of your union-related activity. • Take other adverse action against you based on whether you have joined or support the union. “If you and your coworkers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement. “Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek http://www.nlrb.gov. “* The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered). “This is an official Government Notice and must not be defaced by anyone. “2. The contractor will comply with all provisions of the Secretary's notice, and related rules, regulations, and orders of the Secretary of Labor. “3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order 13496 of January 30, 2009. Such other sanctions or remedies may be imposed as are provided in Executive Order 13496 of January 30, 2009, or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law. “4. The contractor will include the provisions of paragraphs (1) through (4) herein in every subcontract or purchase order entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 3 of Executive Order 13496 of January 30, 2009), so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, if the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.” Subpart B—General Enforcement; Compliance Review and Complaint Procedures § 471.10 How will the Department determine whether a contractor is in compliance with Executive Order 13496 and this part? (a) The Director of OFCCP may conduct a compliance evaluation to determine whether a contractor holding a covered contract is in compliance with the requirements of this part. Such an evaluation may be limited to compliance with this part or may be included in a compliance evaluation conducted under other laws, Executive Orders, and/or regulations enforced by the Department. (b) During such an evaluation, a determination will be made whether: (1) The employee notice required by § 471.2(a) is posted in conformity with the applicable physical and electronic posting requirements contained in § 471.2(d) and (f); and (2) The provisions of the employee notice clause are included in government contracts, subcontracts or purchase orders entered into on or after June 21, 2010, or that the government contracts, subcontracts or purchase orders have been exempted under § 471.3(b). (c) The results of the evaluation will be documented in the evaluation record, which will include findings regarding the contractor's compliance with the requirements of the Executive Order and this part and, as applicable, conciliation efforts made, corrective action taken and/or enforcement recommended under § 471.13. § 471.11 What are the procedures for filing and processing a complaint? (a) Filing complaints. (b) Contents of complaints. (1) The employee's name, address, and telephone number; (2) The name and address of the contractor alleged to have violated the Executive Order and this part; (3) An identification of the alleged violation and the establishment or construction work site where it is alleged to have occurred; (4) Any other pertinent information that will assist in the investigation and resolution of the complaint; and (5) The signature of the employee filing the complaint. (c) Complaint investigations. § 471.12 What are the procedures to be followed when a violation is found during a complaint investigation or compliance evaluation? (a) If any complaint investigation or compliance evaluation indicates a violation of the Executive Order or this part, the Director of OFCCP will make reasonable efforts to secure compliance through conciliation. (b) Before the contractor may be found to be in compliance with the Executive Order or this part, the contractor must correct the violation found by the Department (for example, by posting the required employee notice, and/or by amending its subcontracts or purchase orders with subcontractors to include the employee notice clause), and must commit, in writing, not to repeat the violation. (c) If a violation cannot be resolved through conciliation efforts, the Director of OFCCP will refer the matter to the Director of OLMS, who may take action under § 471.13. (d) For reasonable cause shown, the Director of OLMS may reconsider, or cause to be reconsidered, any matter on his or her own motion or in response to a request. § 471.13 Under what circumstances, and how, will enforcement proceedings under Executive Order 13496 be conducted? (a) General. (i) The results of a compliance evaluation; (ii) The results of a complaint investigation; (iii) A contractor's refusal to allow a compliance evaluation or complaint investigation to be conducted; or (iv) A contractor's refusal to cooperate with the compliance evaluation or complaint investigation, including failure to provide information sought during those procedures. (v) A contractor's refusal to take such action with respect to a subcontract as directed by the Director of OFCCP or the Director of OLMS as a means of enforcing compliance with the provisions of this part. (vi) A subcontractor's refusal to adhere to requirements of this part regarding employee notice or inclusion of the contract clause in its subcontracts. (2) If a determination is made by the Director of OFCCP that the Executive Order or the regulations in this part have been violated, and the violation has not been corrected through conciliation, he or she will refer the matter to the Director of OLMS for enforcement consideration. The Director of OLMS may refer the matter to the Solicitor of Labor to begin administrative enforcement proceedings. (b) Administrative enforcement proceedings. (2) The administrative law judge will certify his or her recommended decision issued under 29 CFR 18.57 to the Administrative Review Board. The decision will be served on all parties and amicus curiae. (3) Within 25 days (10 days if the proceeding is expedited) after receipt of the administrative law judge's recommended decision, either party may file exceptions to the decision. Exceptions may be responded to by the other parties within 25 days (7 days if the proceeding is expedited) after receipt. All exceptions and responses must be filed with the Administrative Review Board. (4) After the expiration of time for filing exceptions, the Administrative Review Board may issue an administrative order, or may otherwise appropriately dispose of the matter. In an expedited proceeding, unless the Administrative Review Board issues an administrative order within 30 days after the expiration of time for filing exceptions, the Administrative Law Judge's recommended decision will become the final administrative order. If the Administrative Review Board determines that the contractor has violated the Executive Order or the regulations in this part, the administrative order will order the contractor to cease and desist from the violations, require the contractor to provide appropriate remedies, or, subject to the procedures in § 471.14, impose appropriate sanctions and penalties, or any combination thereof. [75 FR 28397, May 20, 2010, as amended at 85 FR 13034, Mar. 6, 2020; 85 FR 30619, May 20, 2020; 85 FR 30619, June 19, 2020] § 471.14 What sanctions and penalties may be imposed for noncompliance, and what procedures will the Department follow in imposing such sanctions and penalties? (a) After a final decision on the merits has issued and before imposing the sanctions and penalties described in paragraph (d) of this section, the Director of OLMS will consult with the affected contracting agencies, and provide the heads of those agencies the opportunity to respond and provide written objections. (b) If the contracting agency provides written objections, those objections must include a complete statement of reasons for the objections, which must include a finding that, as applicable, the completion of the contract, or further contracts or extensions or modifications of existing contracts, is essential to the agency's mission. (c) The sanctions and penalties described in this section will not be imposed if: (1) The head of the contracting agency, or his or her designee, continues to object to the imposition of such sanctions and penalties, or (2) The contractor has not been given an opportunity for a hearing. (d) In enforcing the Executive Order and this part, the Director of OLMS may take any of the following actions: (1) Direct a contracting agency to cancel, terminate, suspend, or cause to be canceled, terminated or suspended, any contract or any portions thereof, for failure to comply with its contractual provisions required by Section 7(a) of the Executive Order and the regulations in this part. Contracts may be canceled, terminated, or suspended absolutely, or continuance of contracts may be conditioned upon compliance. (2) Issue an order of debarment under Section 7(b) of the Executive Order providing that one or more contracting agencies must refrain from entering into further contracts, or extensions or other modification of existing contracts, with any non-complying contractor. (3) Issue an order of debarment under Section 7(b) of the Executive Order providing that no contracting agency may enter into a contract with any non-complying subcontractor. (e) Whenever the Director of OLMS exercises the authority in this section, the contracting agency must report the actions it has taken to the Director of OLMS within such time as the Director of OLMS will specify. (f) Periodically, the Director of OLMS will publish and distribute to all executive agencies a list of the names of contractors and subcontractors that have, in the judgment of the Director of OLMS, failed to comply with the provisions of the Executive Order and this part, or of related rules, regulations, and orders of the Secretary of Labor, and as a result have been declared ineligible for future contracts under the Executive Order and the regulations in this part. § 471.15 Under what circumstances must a contractor be provided the opportunity for a hearing? Before the Director of OLMS takes either of the following actions, a contractor or subcontractor must be given the opportunity for a hearing: (a) Issues an order for cancellation, termination, or suspension of any contract or debarment of any contractor from further Government contracts under Sections 7(a) or (b) of the Executive Order and § 471.14(d)(1) or (2) of this part; or (b) Includes the contractor on a published list of non-complying contractors under Section 7(c) of the Executive Order and § 471.14(f) of this part. § 471.16 Under what circumstances may a contractor be reinstated? Any contractor or subcontractor debarred from or declared ineligible for further contracts under the Executive Order and this part may request reinstatement in a letter to the Director of OLMS. In connection with a request for reinstatement, debarred contractors and subcontractors shall be required to show that they have established and will carry out policies and practices in compliance with the Executive Order and implementing regulations. Before reaching a decision, the Director of OLMS may request that a compliance evaluation of the contractor or subcontractor be conducted, and may require the contractor or subcontractor to supply additional information regarding the request for reinstatement. If the Director of OLMS finds that the contractor or subcontractor has come into compliance with the Executive Order and this part and has shown that it will carry out the Executive Order and this part, the contractor or subcontractor may be reinstated. The Director of OLMS shall issue a written decision on the request. Subpart C—Ancillary Matters § 471.20 What authority under this part or Executive Order 13496 may the Secretary delegate, and under what circumstances? Section 11 of the Executive Order grants the Secretary the right to delegate any functions or duties under the Order to any officer in the Department of Labor or to any other officer in the executive branch of the Government, with the consent of the head of the department or agency in which that officer serves. § 471.21 Who will make rulings and interpretations under Executive Order 13496 and this part? The Director of OLMS and the Director of OFCCP will make rulings under or interpretations of the Executive Order or the regulations contained in this part in accordance with their respective responsibilities under the regulations. Requests for a ruling or interpretation must be submitted to the Director of OLMS, who will consult with the Director of OFCCP to the extent necessary and appropriate to issue such ruling or interpretation. § 471.22 What actions may the Director of OLMS take in the case of intimidation and interference? The Director of OLMS may impose the sanctions and penalties contained in § 471.14 of this part against any contractor or subcontractor who does not take all necessary steps to ensure that no person intimidates, threatens, or coerces any individual for the purpose of interfering with the filing of a complaint, furnishing information, or assisting or participating in any manner in a compliance evaluation, complaint investigation, hearing, or any other activity related to the administration or enforcement of the Executive Order or this part. § 471.23 What other provisions apply to this part? (a) The regulations in this part implement only the Executive Order, and do not modify or affect the interpretation of any other Department of Labor regulations or policy. (b) Each contracting department and agency must cooperate with the Director of OLMS and the Director of the OFCCP, and must provide any information and assistance that they may require, in the performance of their functions under the Executive Order and the regulations in this part. (c)(1) This subpart does not impair or otherwise affect: (i) Authority granted by law to a department, agency, or the head thereof; or (ii) Functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (2) This subpart must be implemented consistent with applicable law and subject to the availability of appropriations. (d) Neither the Executive Order nor this part creates any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.