July 5, 2020

Volume X, Number 187

July 03, 2020

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Federal Contractors Must Continue to Post Notice of Labor Rights, Court Holds

A federal district court in Washington, D.C. has rejected a constitutional challenge by the National Association of Manufacturers and Virginia Manufacturers Association to President Barack Obama’s 2010 Executive Order requiring certain federal contractors to post a “Notification of Employee Rights under Federal Labor Laws” on the basis that it violates the First Amendment right of federal contractors to “refrain from speaking.” Nat’l Ass’n of Mfrs. v. Perez, No. 1:13-cv-01998 (D.D.C. May 7, 2015). The Poster notifies contractor employees of their right to organize and other provisions of the National Labor Relations Act (NLRA). 

Under the controversial Executive Order 13496 (see the Department of Labor’s fact sheet), federal contractors are faced with the unacceptable alternatives of posting a notice which promotes unionization, and often may be contrary to a federal contractor’s views, or subjecting themselves to sanctions and possible loss of federal contracts. Because of this Hobson’s choice, the Associations argue, the posting requirement compels federal contractors to convey speech they do not support. 

The District Court found no First Amendment violation, however. The court reasoned that despite the posting requirement, federal contractors remain free to express their views contrary to those expressed in the Poster, and lawfully discourage unionization, without losing their federal contracts. 

In addition, the District Court rejected arguments that President Obama lacked authority to issue the Executive Order, that the posting requirement is arbitrary and capricious, and that the Rule is preempted by the NLRA. The Associations have not indicated whether they will appeal the decision.

Federal contractors with prime contracts in excess of $100,000 or subcontracts in excess of $10,000 must continue to display the Poster “so that it is prominent and readily seen by employees.” 

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 134

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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Mickey Silberman, Labor and Employment law attorney, Jackson Lewis Law firm, Principal
Principal

Mickey Silberman is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. He is the Chair of the Jackson Lewis Affirmative Action & OFCCP Defense Practice Group and the Co-head of the firm’s Pay Equity Resource Group.

Mr. Silberman and the practice group annually prepare thousands of affirmative action plans for employers in all industries and throughout the country. During the past several years, Mr. Silberman has directed the defense of hundreds of OFCCP audits, including successful defense of Corporate Management (“glass ceiling”) Reviews. This high volume of audit defense keeps him on the “cutting edge” of the OFCCP’s rapidly evolving enforcement trends. Mr. Silberman has strong relationships with the OFCCP’s National, Regional and Local office personnel. During the past five years, he has obtained Letters of Compliance in more than 99.5 percent of the hundreds of audits he has defended.

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