[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3448 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 3448
To provide for certain contracting requirements to promote fair and
safe workplaces, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 11, 2020
Ms. Smith (for herself, Mr. Blumenthal, Mr. Brown, Ms. Baldwin, Mrs.
Feinstein, Mrs. Murray, Mrs. Gillibrand, Mr. Van Hollen, Mrs. Shaheen,
Mr. Merkley, and Mr. Durbin) introduced the following bill; which was
read twice and referred to the Committee on Health, Education, Labor,
and Pensions
_______________________________________________________________________
A BILL
To provide for certain contracting requirements to promote fair and
safe workplaces, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Pay and Safe Workplaces Act of
2020''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Covered contract.--The term ``covered contract'' means
a Federal contract for the procurement of property or services,
including construction, valued in excess of $500,000.
(2) Covered subcontract.--The term ``covered
subcontract''--
(A) means a subcontract for property or services
under a Federal contract that is valued in excess of
$500,000; and
(B) does not include a subcontract for the
procurement of commercially available off-the-shelf
items.
(3) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.
SEC. 3. PURPOSE.
The purpose of this Act is to--
(1) ensure that the purchasing power of the Federal
Government is employed to raise labor standards, improve
working conditions, and strengthen workers' bargaining power;
and
(2) increase efficiency and cost savings in the work
performed by parties who contract with the Federal Government
by ensuring that they understand and comply with labor laws,
which are designed to promote safe, healthy, fair, and
effective workplaces and increase the likelihood of enhanced
productivity in the workplace and the timely, predictable, and
satisfactory delivery of goods and services to the Federal
Government.
SEC. 4. REQUIRED PRE-CONTRACT AWARD ACTIONS.
(a) Disclosures.--The head of an executive agency shall ensure that
the solicitation for a covered contract requires the offeror--
(1) to represent, to the best of the offeror's knowledge
and belief, whether there has been any administrative merits
determination, arbitral award or decision, or civil judgment,
as defined in guidance issued by the Secretary of Labor,
rendered against the offeror in the preceding 3 years for
violations of--
(A) the Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.);
(B) the Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq.);
(C) the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1801 et seq.);
(D) the National Labor Relations Act (29 U.S.C. 151
et seq.);
(E) subchapter IV of chapter 31 of title 40, United
States Code (commonly known as the ``Davis-Bacon
Act'');
(F) chapter 67 of title 41, United States Code
(commonly known as the ``Service Contract Act'');
(G) Executive Order 11246 (42 U.S.C. 2000e note;
relating to equal employment opportunity);
(H) section 503 of the Rehabilitation Act of 1973
(29 U.S.C. 793);
(I) section 4212 of title 38, United States Code;
(J) the Family and Medical Leave Act of 1993 (29
U.S.C. 2601 et seq.);
(K) title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.);
(L) the Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.);
(M) the Age Discrimination in Employment Act of
1967 (29 U.S.C. 621 et seq.);
(N) title II of the Genetic Information
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et
seq.);
(O) Executive Order 13658 (79 Fed. Reg. 9851;
relating to establishing a minimum wage for
contractors); or
(P) equivalent State laws, as defined in guidance
issued by the Secretary of Labor;
(2) to require each subcontractor for a covered
subcontract--
(A) to represent to the offeror and the entity
designated by the final rule reissued under subsection
(a) of section 7, to the best of the subcontractor's
knowledge and belief, whether there has been any
administrative merits determination, arbitral award or
decision, or civil judgment, as defined in guidance
issued by the Department of Labor, rendered against the
subcontractor in the preceding 3 years for violations
of any of the labor laws and Executive orders listed
under paragraph (1); and
(B) to update such information every 6 months for
the duration of the subcontract; and
(3) to consider the advice rendered by the entity
designated by the final rule reissued under subsection (a) of
section 7 or information submitted by a subcontractor pursuant
to paragraph (2) in determining whether the subcontractor is a
responsible source with a satisfactory record of integrity and
business ethics--
(A) prior to awarding the subcontract; or
(B) in the case of a subcontract that is awarded or
will become effective within 5 days of the prime
contract being awarded, not later than 30 days after
awarding the subcontract.
(b) Pre-Award Corrective Measures.--
(1) In general.--A contracting officer, prior to awarding a
covered contract, shall, as part of the responsibility
determination, provide an offeror who makes a disclosure
pursuant to subsection (a) an opportunity to report any steps
taken to correct the violations of or improve compliance with
the labor laws and Executive orders listed in paragraph (1) of
such subsection, including any agreements entered into with an
enforcement agency.
(2) Consultation.--The executive agency's Labor Compliance
Advisor designated pursuant to section 6, in consultation with
relevant enforcement agencies, shall advise the contracting
officer whether agreements are in place or are otherwise needed
to address appropriate remedial measures, compliance
assistance, steps to resolve issues to avoid further
violations, or other related matters concerning the offeror.
(3) Responsibility determination.--The contracting officer,
in consultation with the executive agency's Labor Compliance
Advisor, shall consider information provided by the offeror
under this section in determining whether the offeror is a
responsible source with a satisfactory record of integrity and
business ethics. The determination shall be based on the
guidelines reissued under subsection (b)(1) of section 7 and
the final rule reissued under subsection (a) of such section.
(c) Referral of Information to Suspension and Debarment
Officials.--As appropriate, contracting officers, in consultation with
their executive agency's Labor Compliance Advisor, shall refer matters
related to information provided pursuant to paragraphs (1) and (2) of
subsection (a) to the executive agency's suspension and debarment
official in accordance with agency procedures.
SEC. 5. POST-AWARD CONTRACT ACTIONS.
(a) Information Updates.--The contracting officer for a covered
contract shall require that the contractor update the information
provided under paragraphs (1) and (2) of section 4(a) every 6 months.
(b) Corrective Actions.--
(1) Prime contract.--The contracting officer, in
consultation with the Labor Compliance Advisor designated
pursuant to section 6, shall determine whether any information
provided under subsection (a) warrants corrective action. Such
action may include--
(A) an agreement requiring appropriate remedial
measures;
(B) compliance assistance;
(C) resolving issues to avoid further violations;
(D) the decision not to exercise an option on a
contract or to terminate the contract; or
(E) referral to the agency suspending and debarring
official.
(2) Subcontracts.--The prime contractor for a covered
contract, in consultation with the Labor Compliance Advisor,
shall determine whether any information provided under section
4(a)(2) warrants corrective action, including remedial
measures, compliance assistance, and resolving issues to avoid
further violations.
(3) Department of labor.--The Department of Labor shall, as
appropriate, inform executive agencies of its investigations of
contractors and subcontractors on current Federal contracts for
purposes of determining the appropriateness of actions
described under paragraphs (1) and (2).
SEC. 6. LABOR COMPLIANCE ADVISORS.
(a) In General.--Each executive agency shall designate a senior
official to act as the agency's Labor Compliance Advisor.
(b) Duties.--The Labor Compliance Advisor shall--
(1) meet quarterly with the Deputy Secretary, Deputy
Administrator, or equivalent executive agency official with
regard to matters covered under this Act;
(2) work with the acquisition workforce, agency officials,
and agency contractors to promote greater awareness and
understanding of labor law requirements, including
recordkeeping, reporting, and notice requirements, as well as
best practices for obtaining compliance with these
requirements;
(3) coordinate assistance for executive agency contractors
seeking help in addressing and preventing labor violations;
(4) in consultation with the Department of Labor or other
relevant enforcement agencies, and pursuant to section 4(b) as
necessary, provide assistance to contracting officers regarding
appropriate actions to be taken in response to violations
identified prior to or after contracts are awarded, and address
complaints in a timely manner, by--
(A) providing assistance to contracting officers
and other executive agency officials in reviewing the
information provided pursuant to subsections (a) and
(b) of section 4 and section 5(a), or other information
indicating a violation of a labor law in order to
assess the serious, repeated, willful, or pervasive
nature of any violation and evaluate steps contractors
have taken to correct violations or improve compliance
with relevant requirements;
(B) helping agency officials determine the
appropriate response to address violations of the
requirements of the labor laws and Executive orders
listed in section 4(a)(1) or other information
indicating such a labor violation (particularly
serious, repeated, willful, or pervasive violations),
including agreements requiring appropriate remedial
measures, decisions not to award a contract or exercise
an option on a contract, contract termination, or
referral to the executive agency suspension and
debarment official;
(C) providing assistance to appropriate executive
agency officials in receiving and responding to, or
making referrals of, complaints alleging violations by
agency contractors and subcontractors of the
requirements of the labor laws listed in section
4(a)(1); and
(D) supporting contracting officers, suspension and
debarment officials, and other agency officials in the
coordination of actions taken pursuant to this
subsection to ensure agency-wide consistency, to the
extent practicable;
(5) as appropriate, send information to agency suspension
and debarment officials in accordance with agency procedures;
(6) consult with the agency's Chief Acquisition Officer and
Senior Procurement Executive, and the Department of Labor as
necessary, in the development of regulations, policies, and
guidance addressing labor law compliance by contractors and
subcontractors;
(7) make recommendations to the agency to strengthen agency
management of contractor compliance with labor laws;
(8) publicly report, on an annual basis, a summary of
agency actions taken to promote greater labor compliance,
including the agency's response pursuant to this order to
serious, repeated, willful, or pervasive violations of the
requirements of the labor laws and Executive orders listed in
section 4(a)(1); and
(9) participate in the interagency meetings regularly
convened by the Secretary of Labor pursuant to section
7(b)(2)(C).
SEC. 7. MEASURES TO ENSURE GOVERNMENT-WIDE CONSISTENCY.
(a) Federal Acquisition Regulation.--
(1) In general.--Notwithstanding Public Law 115-11 (131
Stat. 75) and section 553 of title 5, United States Code, not
later than 1 year after the date of enactment of this Act, the
Secretary of Defense, the Administrator of the General Services
Administration, and the Administrator of the National
Aeronautics and Space Administration shall reissue the final
rule entitled ``Federal Acquisition Regulation; Fair Pay and
Safe Workplaces'' (81 Fed. Reg. 58562 (Aug. 25, 2016)), subject
to paragraph (2).
(2) Updated dates.--The agencies described in paragraph (1)
may, in reissuing the final rule under such paragraph, update
any date provided in such final rule as reasonable and
necessary.
(b) Department of Labor.--
(1) Guidance.--Not later than 1 year after the date of
enactment of this Act, the Secretary of Labor shall reissue the
guidance entitled ``Guidance for Executive Order 13673, `Fair
Pay and Safe Workplaces''' (81 Fed. Reg. 58564 (Aug. 25,
2016)). In reissuing such guidance, the Secretary of Labor may
update any date provided in such guidance as reasonable.
(2) Additional activities.--The Secretary of Labor shall--
(A) develop a process--
(i) for the Labor Compliance Advisors
designated pursuant to section 6 to consult
with the Secretary of Labor in carrying out
their responsibilities under section 6(b)(4);
(ii) by which contracting officers and
Labor Compliance Advisors may give appropriate
consideration to determinations and agreements
made by the Secretary of Labor and the heads of
other executive agencies; and
(iii) by which contractors may enter into
agreements with the Secretary of Labor, or the
head of another executive agency, prior to
being considered for a contract;
(B) review data collection requirements and
processes, and work with the Director of the Office of
Management and Budget, the Administrator of General
Services, and other agency heads to improve such
requirements and processes, as necessary, to reduce the
burden on contractors and increase the amount of
information available to executive agencies;
(C) regularly convene interagency meetings of Labor
Compliance Advisors to share and promote best practices
for improving labor law compliance; and
(D) designate an appropriate contact for executive
agencies seeking to consult with the Secretary of Labor
with respect to the requirements and activities under
this Act.
(c) Office of Management and Budget.--The Director of the Office of
Management and Budget shall--
(1) work with the Administrator of General Services to
include in the Federal Awardee Performance and Integrity
Information System the information provided by contractors
pursuant to sections 4(a)(1) and 5(a) and data on the
resolution of any issues related to such information; and
(2) designate an appropriate contact for agencies seeking
to consult with the Office of Management and Budget on matters
arising under this Act.
(d) General Services Administration.--
(1) In general.--The Administrator of General Services, in
consultation with other relevant executive agencies, shall
establish a single internet website for Federal contractors to
use for all Federal contract reporting requirements under this
Act, as well as any other Federal contract reporting
requirements to the extent practicable.
(2) Agency cooperation.--The heads of executive agencies
with covered contracts shall provide the Administrator of
General Services with the data necessary to maintain the
internet website established under paragraph (1).
(e) Minimizing Compliance Burden.--After reissuing the guidance
under subsection (b)(1) or the final rule under subsection (a), the
Secretary of Labor or the Secretary of Defense, the Administrator of
the General Services Administration, and the Administrator of the
National Aeronautics and Space Administration may, respectively, amend
such guidance or final rule consistent with the requirements under
chapter 5 of title 5, United States Code.
SEC. 8. PAYCHECK TRANSPARENCY.
(a) In General.--Each executive agency entering into a covered
contract, or covered subcontract, shall ensure that provisions in
solicitations for such contracts, or subcontracts, and clauses in such
contracts, or subcontracts, shall provide that, for each pay period,
contractors or subcontractors provide each individual described in
subsection (b) with a document containing information with respect to
such individual for the pay period concerning hours worked, overtime
hours worked, pay, and any additions made to or deductions made from
pay.
(b) Individuals Described.--An individual described in this
subsection is any individual performing work under a contract or
subcontract for which the contractor or subcontractor is required to
maintain wage records under--
(1) the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.);
(2) subchapter IV of chapter 31 of title 40, United States
Code (commonly referred to as the ``Davis-Bacon Act'');
(3) chapter 67 of title 41, United States Code (commonly
known as the ``Service Contract Act''); or
(4) an applicable State law.
(c) Exceptions.--
(1) Employees exempt from overtime requirements.--The
document provided under subsection (a) to individuals who are
exempt under section 13 of the Fair Labor Standards Act of 1938
(29 U.S.C. 213) from the overtime compensation requirements
under section 7 of such Act (29 U.S.C. 207) shall not be
required to include a record of the hours worked if the
contractor or subcontractor informs the individual of the
status of such individual as exempt from such requirements.
(2) Substantially similar state laws.--The requirements
under this section shall be deemed to be satisfied if the
contractor or subcontractor complies with State or local
requirements that the Secretary of Labor has determined are
substantially similar to the requirements under this section.
(d) Independent Contractors.--If the contractor or subcontractor is
treating an individual performing work under a covered contract or
subcontract as an independent contractor, and not as an employee, the
contractor or subcontractor shall provide the individual a document
informing the individual of the individual's status as an independent
contractor.
SEC. 9. COMPLAINT AND DISPUTE TRANSPARENCY.
(a) In General.--
(1) Contracts.--The head of an executive agency may not
enter into a contract for the procurement of property or
services valued in excess of $500,000 unless the contractor
agrees that any decision to arbitrate the claim of an employee
or independent contractor performing work under the contract
that arises under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) or any tort related to or arising out of
sexual assault or sexual harassment may only be made with the
voluntary consent of the employee or independent contractor
after the dispute arises.
(2) Subcontracts.--The head of an executive agency shall
require that a contractor covered under paragraph (1)
incorporate the requirement under such paragraph into each
subcontract for the procurement of property or services valued
in excess of $500,000 at any tier under the contract.
(b) Exceptions.--
(1) Contracts for commercial items and commercially
available off-the-shelf items.--The requirements under
subsection (a) do not apply to contracts or subcontracts for
the acquisition of commercial items or commercially available
off-the-shelf items (as those terms are defined in sections
103(1) and 104, respectively, of title 41, United States Code).
(2) Employees and independent contractors not covered.--The
requirements under subsection (a) do not apply with respect to
an employee or independent contractor who--
(A) is covered by a collective bargaining agreement
negotiated between the contractor or subcontractor and
a labor organization representing the employee or
independent contractor; or
(B) entered into a valid agreement to arbitrate
claims covered under such subsection before the
contractor or subcontractor bid on the contract covered
under such subsection, except that such requirements do
apply--
(i) if the contractor or subcontractor is
permitted to change the terms of the
arbitration agreement with the employee or
independent contractor; or
(ii) in the event the arbitration agreement
is renegotiated or replaced after the
contractor or subcontractor bids on the
contract.
SEC. 10. NEUTRALITY.
(a) Allowable Costs.--Costs incurred in maintaining satisfactory
relations between a contractor, and its employees, on a covered
contract or a subcontractor, and its employees, on a covered
subcontract (other than those made unallowable in subsection (b) of
this section), including costs of shop stewards, labor management
committees, employee publications, and other related activities, are
allowable.
(b) Limitation on Federal Funds.--No Federal funds made available
through a covered contract or covered subcontract may be used to engage
in activities undertaken to persuade employees, of any entity, to
exercise or not to exercise, or concerning the manner of exercising,
the right to organize and bargain collectively through representatives
of the employees' own choosing or any other activities that are subject
to the requirements under section 203(b) of the Labor-Management
Reporting and Disclosure Act of 1959 (29 U.S.C. 433(b)). Examples of
unallowable costs under this subsection include the costs of--
(1) preparing and distributing materials;
(2) hiring or consulting legal counsel or consultants;
(3) meetings (including paying the salaries of the
attendees at meetings held for this purpose); and
(4) planning or conducting activities by managers,
supervisors, or union representatives during work hours.
SEC. 11. IMPLEMENTING REGULATIONS.
Not later than 9 months after the date of enactment of this Act,
the Federal Acquisition Regulatory Council shall amend the Federal
Acquisition Regulation to carry out the provisions of this Act,
including sections 8 and 9.
SEC. 12. SEVERABILITY.
If any provision of this Act or the application of any such
provision to any person or circumstance is held to be unconstitutional,
the remaining provisions of this Act and the application of such
provisions to any person or circumstance shall not be affected by such
holding.
SEC. 13. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed as--
(1) impairing or otherwise affecting the authority granted
by law to an executive agency or the head thereof; or
(2) impairing or otherwise affecting the functions of the
Director of the Office of Management and Budget relating to
budgetary, administrative, or legislative proposals.
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