Executive Order 13496 (Employee Posting Rule) Update

Answers To Employers’ Common Questions

Executive Order 13496’s employee notice posting requirement became effective June 21, 2010. While no clause implementing the requirement has been finalized by the Federal Acquisition Regulation (FAR) Councils, an interim clause has been issued. Below are common questions regarding this new requirement for federal contractors and subcontractors.

Q: Where do I have to physically post the notice in my building?

A: When and if you receive a contract or subcontract containing FAR 52.222-99 or -40, and you determine that you are covered by FAR’s provisions, the notice must be posted where employees covered by the National Labor Relations Act (NLRA) “engage in contract-related activity.” Employees not covered by the NLRA include agricultural laborers, domestic workers, independent contractors, supervisors, and employees who work for employers subject to the Railway Labor Act (RLA).

Whether or not you are currently “non-union” does not matter in determining whether the employee notice must be posted; the trigger for posting is having a covered federal contract or subcontract.

Q: Must I post the employee notice electronically?

A: The final rule requires that you physically post the employee notice and post it electronically if you “customarily” electronically post notices regarding the terms and conditions of employment (e.g., your employee handbook is online, or you customarily correspond with employees regarding work issues via email). If you do post the notice electronically, you must post a “prominent” link to the employee notice contained on the Office of Labor- Management Standards’ website.

Q: May I post the notice electronically instead of posting it physically in my workplace?

A: No. Electronic posting cannot be used as a substitute for physical posting.

Q: Are there any exemptions to having to post the notice?

A: Yes. The posting requirements do not apply to: (1) federal contracts entered into before June 21; (2) contracts entered into after June 21 that do not include FAR 52.222-99 or -40; (3) contracts below $100,000 or subcontracts below $10,000 which are not neces-sary to the performance of the prime contract; (4) contracts/subcontracts for work exclusively performed outside of the United States; (5) grants or loans (such as Medicare and Medicaid) that constitute “federal financial assistance”; (6) states or political subdivisions; and (7) companies subject to the RLA. Other exemptions also may apply.

Note: This article was published in the July/August 2010 issue of The Employment Law Authority.