Over the past year, the Biden administration has issued a number of labor and employment executive orders applicable to government contractors. Some of those requirements are updates to Obama-era executive orders, while others are new. Together, these obligations, which include an almost 50% increase to the applicable minimum wage, can have a significant impact on contractors.

For any government contractors that have questions about these labor and employment changes, we hope you can join us for an overview of these recent developments.

Continue Reading [WEBINAR] What Was Old is New Again – Government Contractor Labor & Employment Updates

On February 4, President Biden signed the Executive Order on Use of Project Labor Agreements for Federal Construction Projects, which mandates, with limited exceptions, that contractors and subcontractors working on federal construction projects valued at $35 million or more agree that for that project, the companies will “become a party to a project labor agreement [PLA] with one or more appropriate labor organizations.”  A prior EO issued by President Obama, which the recent EO drew liberally from, encouraged the use of labor agreements on large construction projects, but we are not aware of any prior EO mandating their use.

Continue Reading Union Labor or Bust! Project Labor Agreements Now Required for Large Federal Construction Projects

Last week, the District Court for the Eastern District of California denied the defendant’s motion for summary judgment of a False Claims Act (FCA) count against Aerojet Rocketdyne (Aerojet) for allegedly fraudulently inducing the government to enter into federal contracts when the company knew it was not compliant with cybersecurity requirements.

The order contains important lessons for government contractors in the emerging area of FCA liability based on noncompliance with cybersecurity obligations. While the litigation is ongoing and may ultimately be resolved in Aerojet’s favor, the order demonstrates the growing importance of cybersecurity compliance.

Continue Reading Government Contractors Face False Claims Act Liability for Cybersecurity Non-Compliance

After we published our article last week about the status of the four federal vaccine mandates, we learned that a seventh district court had enjoined the federal contractor COVID-19 vaccine mandate, continuing a remarkable string of losses for the Department of Justice (DOJ) in their attempts to defend President Biden’s Executive Order (EO) 14042. While the District Court for the District of Arizona has not yet finalized all of the details of its injunction that only applies in Arizona (the parties will be briefing that issue over the next week), this is yet another indication that the contractor mandate is unlikely ever to be fully implemented in its current form.

On September 14, the state of Arizona, along with several other entities and individuals, filed suit challenging both the contractor vaccine mandate and the federal employee vaccine mandate ordered in EO 14043. The Order issued on January 27 held the challenge to the federal employee mandate was not yet ripe, but it enjoined the contractor mandate.

As an initial matter, the court agreed with DOJ that the plaintiff challenging the employee mandate did not have standing because he had a medical exemption request pending and was, therefore, not required to be vaccinated or subject to discipline at that time and may never be if the request is granted. Because his alleged injury – have the vaccine or be terminated – may never occur, any opinion issued in response to his claim would be “merely advisory,” and therefore, his claim was unripe. The court similarly held that Arizona did not have standing to challenge the employee mandate because its employees were not subject to it, and the mandate did not infringe on Arizona’s sovereignty.

Continue Reading DOJ’s Run of Bad Luck Continues – A Seventh District Court Enjoins the Federal Contractor Vaccine Mandate

The vaccine mandates President Biden announced on September 9 have not aged well. Two are enjoined nationwide and a skeptical Supreme Court so undermined one that the government withdrew it, at least for the immediate future. Only one, an interim final rule applicable to employees at healthcare facilities receiving Medicare and Medicaid funds, is still standing. And it is questionable whether that mandate will remain in place once it becomes clear what the impact on operations will be on attrition caused by requiring personnel at those medical facilities to be vaccinated irrespective of their personal objections (those employees can apply for medical or religious accommodations, but the exceptions are narrow).

While three of the federal mandates are unraveling, contractors should understand their current status and continue to monitor them.  Litigation is ongoing, so it is possible, although increasingly unlikely, that two of them – the federal contractor and federal employee mandates – will be back. In addition, several federal facilities are still requiring as a condition of entry that contractor employees working on those facilities sign certifications as to their vaccination status and, if not vaccinated, present a negative COVID-19 test within the prior 72 hours.

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I am looking forward to participating in the Labor & Employment panel as part of the Pub K Annual Review 2022. I will be presenting with Nichole Atallah (PilieroMazza PLLC), Howard Wolf-Rodda (Abrahams Wolf-Rodda) and Michael Schrier (Husch Blackwell). Our panel will take place on Monday, January 24, 2022 at 3:00 p.m. EST and highlights will include:

  • The status of the vaccine mandates applicable to government contractors.
  • The increased minimum wage for government contractors.
  • The return of the non-displacement of qualified workers under service contracts requirement.
  • OFCCP trends and new certification requirements.

The Pub K Annual Review 2022 offers many panels over their four-day conference taking place January 24-27, 2022. There is no charge to attend, but registration is required. For additional information and to register, please click here.

I am looking forward to presenting a session titled “Intellectual Property” for the Oak Ridge Small Business Innovation Conference on January 25, 2022 at 12:30 p.m. EDT. The conference is hosted by the UT Center for Industrial Services, Institute for Public Service. Conference highlights include:

  • Tips regarding proposal strategies for SBIR/STTR funding
  • Understanding how to find research and development opportunities
  • Hear from early stage investors about commercializing technology
  • Learn how to leverage research capabilities with Federal partners
  • Learn from a legal expert on how to handle intellectual property
  • Connect with Department of Energy and Department of Defense SBIR/STTR program experts

For more information and to register, please click here.

On December 23, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and TD Bank, N.A. (TD) reached a settlement to resolve TD’s violations of the North Korea Sanctions Regulations and the Foreign Narcotics Kingpin Sanctions Regulations.  On January 12, OFAC and Sojitz Hong Kong (Sojitz HK) reached a settlement agreement in connection with Sojitz’s violations of the Iranian Transaction and Sanction Regulations (ITSR).  These two resolutions, reached only a few weeks apart, serve as a reminder of OFAC’s broad remit to administer and enforce U.S. sanctions regulations.

TD Bank Violated North Korea and Narcotics Kingpin Sanctions

The United States maintains comprehensive sanctions on North Korea, and most transactions with the country and nationals of the country, wherever located, are prohibited without a license.  While a license authorizes banks in the United States to conduct certain transactions with the North Korean Mission to the United Nations, that license does not extend to maintaining accounts for employees of the North Korean Mission.

According to OFAC, TD processed 1,479 transactions and maintained nine accounts on behalf of five employees of the North Korean Mission without a license from OFAC.  OFAC noted that TD’s sanctions screening did not pick up individual employees of the government of North Korea.  OFAC also noted that TD employees apparently misclassified North Korean Mission personnel when processing passports by filling in the South Korean country code or leaving the citizenship identification field blank.

Continue Reading OFAC Enforcement Update: Settlements Show Value of Internal Controls, Disclosure

I am looking forward to presenting at the 11th Annual U.S. Export & Re-Export Compliance for Canadian Operations Virtual Conference. The conference will take place January 26-27, 2022 with pre-conference workshops on January 25, 2022. I will be presenting with John Boscariol, Partner at McCarthy Tétrault LLP based in Toronto, Canada.

Our session, “Updating Your Risk-Based Economic Sanctions Compliance Program: The Latest U.S. and Canadian Restrictions, and Their Practical Impact,” will take you through the most critical economic sanctions developments and trends affecting exports and reexports. The discussion will focus on new, unanticipated pitfalls to avoid for 2022 and beyond.

  • Comparing and contrasting U.S. and Canadian sanctions-and their practical impact on export and reexport operations
  • The rapidly changing China landscape, and the impact on due diligence and supply chain risks
  • Impact of the PRC’s Foreign Anti-Sanctions Regulation and the new Blocking Statute
  • Performing due diligence amid the increased use of The Entity List
  • Iran: Status report and negotiations with Iran and what is on the horizon

Continue Reading [VIRTUAL EVENT] Updating Your Risk-Based Economic Sanctions Compliance Program: The Latest U.S. and Canadian Restrictions, and Their Practical Impact

On December 8, 2021, President Biden issued Executive Order (EO) 14057 “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.” The EO is the administration’s most recent effort to achieve “a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050.”

Federal agencies, government suppliers, and American businesses are urged to embrace the administration’s sustainability objectives and attain cleaner and more sustainable operation standards.

Federal Sustainability Plan

The EO describes the Biden administration’s efforts to adopt green technology by focusing on five aspects.

Continue Reading Biden’s “Clean Energy” Directive’s Impact on Government Contractors

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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