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By Missy England
July 24, 2016
Government contractors face a changing world that entails staying in compliance with employer requirements, including those related to immigration. The challenges are not only at the federal level, as states, and even municipalities, increasingly pass legislation affecting contractors who work on government projects. While this patchwork of regulations has historically affected contractors who work across state borders, it is now beginning to affect contractors who work across county and city boundaries.
Here is a rundown of key employment, and immigration issues government contractors face in 2016.
At an American Bar Association Equal Opportunity Law Conference in April, government representatives spoke about labor and employment initiatives for 2016 and beyond. Top priorities include addressing recruiting and hiring barriers, protecting vulnerable workers, enforcing equal pay laws, preserving legal system access, and preventing harassment.
A key aspect of this list is its relation to immigrant and migrant workers; it is bound to affect construction because of the sector’s historic reliance on those labor pools.
There is also heightened interest in using E-Verify system to diminish employer discrimination. The Equal Employment Opportunity Commission is exploring the employer practice of requiring more or varied information from different applicants. They are particularly focused on employers who use software to streamline their application process because in some cases, the software will sort applicants based on criteria like race, gender, and national origin. These characteristics cannot be legally considered in hiring decisions.
Immigrant and migrant worker employment issues are also arising at the state and local levels as some seek to maintain the status quo to keep the cheap labor flowing, while others push for greater enforcement of current immigration laws. Texas is at the epicenter of the issue with recent contention over sanctuary cities that is even pitting factions of the same political party against each other. California, Oregon, North Carolina, West Virginia, and Illinois are just a few of the other states taking legislative initiatives related to immigration. With towns and cities now getting into the act as well, construction employers have a lot to keep track of if they want to stay compliant. But, immigration issues are only the tip of the iceberg as states and municipalities dig deeper into legislative areas that have historically been in the realm of the federal government.
State, and locally mandated minimum wages, laws governing pay discrimination, laws requiring mandatory paid sick leave, laws reducing the maximum length of unemployment benefits, and even mass transit subsidies for workers are all examples of the evolving employment law landscape that are affecting contractors and other construction employers on both public and private projects. Some states are even passing their own laws governing whether a person is an employee or contractor. These laws might not line up with federal laws on the same subject, making compliance a double-edged sword.
Contractors working on federal government projects will soon need to provide an hour of paid sick leave for every 30 hours an employee works, according to the Department of Labor. This sick leave can accrue up to 56 hours in any year. DOL will release the final regulations in September which are expected to affect 828,000 employees.
In addition to providing employees leave time for illnesses, healthcare, and preventative care, the mandate also gives them time to care for family members, and special needs. These special needs are applicable to victims of domestic violence or sexual assault. While employers must allow employees to carryover some of the sick leave benefits, they can never exceed 56 hours. This requirement applies to any new federal contract or subcontract an employer enters after January 1, 2017.
Federal government contractors must also align their policies and procedures with the expanded definition of what constitutes discrimination. Today, a contractor cannot discriminate against an employee or applicant because of race, color, religion, sex, gender identity, national origin, or sexual orientation. Important considerations to stay in compliance with this and other employment laws are to be sure that supervisors and people handling recruiting, interviewing, and other employment functions are well trained in the requirements of satisfying the law. To stay in compliance, employers also have to make sure their facilities don’t segregate people based on the protected characteristics laid out in the law.
Another new employee regulation affecting federal government contractors is one governing pay transparency. When working on contracts of at least $10,000, contractors and subcontractors must comply with Executive Order 13665. This order bars employers from firing or discriminating against employees or applicants who talk about their compensation, or the compensation of others. There is an exception if the employee is releasing information they have access to while performing their usual jobs. The rule, for example, wouldn’t apply to someone in human resources, who has access to sensitive information about compensation to perform their duties. Conversation in this case include salary, wages, overtime, bonuses, commissions, and more, according to the National Law Review.
Employers on all federal construction and service contracts must also now pay a minimum wage of $10.10 per hour. If employees earn tips, they must get a minimum of $5.85 per hour. Contractors and subcontractors also have to incorporate the change into any lower tier subcontracts, and notify those workers as well. Contractors working on federal projects with veterans and disabled people must also comply with new regulations regarding the hiring process for these groups of people. There is now a veteran hiring benchmark to meet, so contractors should track their statistics on veteran hiring efforts. Federal contractors have similar requirements for including disabled people in their workforces.
Employment law and immigration issues are not new. Regulators and the courts are responding to employee issues arising from the changing business environment. It is important to stay up-to-date on employment law and to use legal counsel to make sure you stay in compliance.
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