Frustrated with Congress’s failure to pass the Employment Non-Discrimination Act (ENDA) and consistent with his recent Executive Order to raise the minimum wage to $10.10 for employees of federal contractors, President Obama once again signed an Executive Order on Monday amending Executive Order 11246 to include “sexual orientation” and “gender identity” in the list of protected classes federal contractors may not discriminate against.
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In response to President Obama’s Executive Order earlier this year, the Department of Labor has issued a Notice of Proposed Rulemaking (NPRM) to establish standards and procedures for raising the minimum wage paid to employees of federal construction and service contractors to $10.10 per hour beginning January 1, 2015 and then increased on a yearly basis beginning January 1, 2016. Federal contractors have until July 17, 2014 to comment on the proposed regulations that could have a large impact on contractors’ operations.
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Beginning today, March 24, 2014, federal contractors and subcontractors have a number of new responsibilities. Contractors already have the existing obligation to collect demographic data regarding race and gender and take affirmative action to recruit, hire, and retain qualified minorities, women, individuals with disabilities, and protected veterans. Now contractors must take additional steps to recruit and hire individuals with disabilities and protected veterans, including the collection of data related to the status of applicants and employees as protected veterans and individuals with disabilities.
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By now, most federal contractors are aware of the new regulations that go into effect on March 24 requiring federal contractors and subcontractors to take affirmative action to recruit, hire, promote, and retain protected veterans and individuals with disabilities

What many contractors may not realize is that as of July 1, 2013, they also became covered by federal whistleblower regulations. The National Defense Authorization Act for Fiscal Year 2013 created a pilot program mandating all employees working for contractors, grantees, subcontractors, and subgrantees be protected by federal whistleblower law for all federal grants and contracts entered into after July 1, 2013.
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A recent decision by a Pennsylvania district court lends support for a growing trend of filing claims under the Federal False Claims Act based on allegations that contractors on federally funded construction projects submitted “false claims” to the U.S. government due to prevailing wage violations. In United States ex rel. International Brotherhood of Electrical Workers, Local Union No. 98 v. The Farfield Co., the electrical workers union filed a complaint in federal court alleging that the contractor had violated the False Claims Act by submitting false certified payrolls that misclassified certain workers on public works projects in the Philadelphia area. Although this type of complaint would normally fall within the exclusive jurisdiction of the U.S. Department of Labor, the judge nonetheless allowed the union’s case to proceed in court on a False Claims Act theory. With judicial recognition of this type of legal claim, not only does the DOL have the ability to investigate contractors for prevailing wage violations under the Davis-Bacon Act, but private citizens can also attack alleged violations under the False Claims Act.
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