CDIA filed a comment with the U.S. Department of Labor in connection with proceedings that could make it harder for background checks to be conducted if screening companies were blacklisted based on the mere allegation of a state or federal EEO violation.
At the end of May the U.S. Department of Labor issued Guidance for Executive Order 13673, ‘‘Fair Pay and Safe Workplaces” at the same time a proposed rule was issued by the DOD, GSA, and NASA. A Littler blog says that, taken together,
…the rule and guidance would immediately upend the current system of federal contracting by enabling federal agencies to reject a bid or cancel an existing contract – as well as initiate suspension and debarment proceedings – based on labor and employment law violations that a contractor may have already resolved or that have already been adjudicated.
Should a background screening company or employer/customer run afoul of EEO violations, for example, they may be blacklisted from government contracting. As highlighted by the Littler blog,
The DOL proposal provides some detail as to what constitutes a “labor violation” by further defining what constitutes “an administrative merits determination, arbitral award or decision, or civil judgment.” Significantly, an administrative merits determination includes, for instance, an EEOC reasonable cause determination as well as complaints filed in court by enforcement agencies. Civil judgments include any order or finding of a court even if not final (though it excludes private settlement agreements if a judgment has not been awarded). The rule recognizes that “violations” are reportable before the adjudicatory process may be completed, and provides that contractors may offer information to assist in assessing the “violation.”
Specifically, the DOL, in its proposed guidance, delineates reportable violations by defining the terms “administrative merits determination,” “civil judgment,” “arbitral award or decision,” and also defines the terms “serious,” “repeated,” “willful,” and “pervasive” violations to assess the impact, if any, the reported violations will have on the award and/or performance of the contract at issue.
. . .
As to reportable violations, the DOL guidance articulates seven categories of documents, notices, and findings—whether final or subject to appeal or further review—issued by an enforcement agency following an investigation that would constitute an administrative merits determinations that must be reported under the EO. These items [include]
(d) from the Equal Employment Opportunity Commission (the EEOC):
a letter of determination that reasonable cause exists to believe that an unlawful employment practice has occurred or is occurring; or
a civil action filed on behalf of the EEOC;
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More