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Post by TCU 2U2 on Nov 14, 2019 9:57:51 GMT -5
Not good news for those working on government contracts:
A Halloween Surprise: President Trump Revokes Executive Order 13495 Executive Order 13495 has had a bit of a rocky past. Originally issued by President Clinton, the Order has been rescinded and then replaced, depending on the President’s political persuasions. After being reinstated by President Obama in 2009, many (like me) assumed that President Trump would have promptly rescinded it again.
Three years into his administration, President Trump has now acted: on Halloween, he rescinded Executive Order 13495.
Let’s take a step back by refreshing ourselves as to what, exactly, Executive Order 13495 required. Formally known as the Nondisplacement of Qualified Workers Under Service Contracts Executive Order, the Order required a follow-on contractor under a service contract to issue a right of first refusal to incumbent employees whose jobs would be terminated as a result of the new contract. Specifically, the Order stated:
Consistent with the efficient performance of this contract, the contractor and its subcontractors shall, except as otherwise provided herein, in good faith offer those employees (other than managerial and supervisory employees) employed under the predecessor contract whose employment will be terminated as a result of award of this contract or the expiration of the contract under which the employees were hired, a right of first refusal of employment under this contract in positions for which the employees were qualified.
Colloquially known as the “Right of First Refusal Order,” Executive Order 13495 was aimed at ensuring both the continuity of knowledge from one contractor to the next, while minimizing the risk of unemployment following the transition of contractors. Importantly, the Order did not apply to all incumbent workers (as it excluded managerial and supervisory employees), nor did it contemplate that a new contractor would hire the incumbent personnel en masse. The Secretary of Labor was designated as being responsible for ensuring compliance with the Order.
Executive Order 13495 obviously had significant implications for service contractors. Under FAR 52.222-17 (which implemented the Order in conjunction with Department of Labor regulations), contractors would often be subject to compliance throughout their contract. Not only would agencies often evaluate offerors on their ability to retain incumbent employees, but the Order and FAR 52.222-17(b)(2) specifically prohibited contractors from offering employment to non-incumbent personnel before the contractor offered rights of first refusal.
Following the ideological split on the usefulness of Executive Order 13495, President Trump revoked Executive Order 13495 on October 31, 2019. This revocation is comprehensive:
The Secretary of Labor[], the Federal Acquisition Regulatory Council, and heads of executive departments and agencies shall, consistent with law, promptly move to rescind any orders, rules, regulations, guidelines, programs, or policies implementing or enforcing Executive Order 13495.
Additionally, the revocation requires the Secretary of Labor to “terminate, effective immediately, any investigations or compliance actions based on Executive Order 13495.” In other words, not only does 13495 go away, but the FAR Council was instructed to rescind FAR 52.222-17.
Though comprehensive, it might take awhile for contractors to feel any effects of the revocation of Executive Order 13495 outside of enforcement by the Department of Labor. That is, FAR 52.222-17 is technically still on the books. And an agency might decide, as part of its evaluation criteria, to continue to assess an offeror’s ability to recruit and retain incumbent personnel, if the agency believes it is in its best interest to do so. Moreover, the follow-on contractor’s decision to recruit incumbent employees en masse will continue to be a factor under the ostensible subcontractor affiliation analysis. |
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Post by northwx on Nov 14, 2019 19:29:33 GMT -5
A good reason to be in a Union... When W rescinded this EO and I was asked by a new contractor if I wanted to replace any employees - I simply told him there would be a mutiny if I suggested someone be replaced. We went union shortly after that.
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Post by TCU 2U2 on Nov 15, 2019 7:16:36 GMT -5
A good reason to be in a Union... When W rescinded this EO and I was asked by a new contractor if I wanted to replace any employees - I simply told him there would be a mutiny if I suggested someone be replaced. We went union shortly after that. CBA has language that protects employment of incumbent staff when a new (incoming) vendor takes over the contract? |
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Post by luvsnow on Nov 15, 2019 10:05:45 GMT -5
Well THANK YOU PRESIDENT TRUMP from all of us! Some of which have given 4 or even more years service to our country just to have the rug pulled out from under us so that some contractor with no ethics can replace or demote employees with 4 and 5 weeks vacation in favor of those with 2 weeks vacation just to pad their own bank accounts. I don't think a CBA is going to override and Executive Order.
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Post by skobie on Nov 15, 2019 13:13:41 GMT -5
A CBA doesn't have to "trump" a presidential executive order, luvsnow, it just needs to be included in your CBA as a "right of first refusal" Article. Then the incoming contractor must keep all employees if they're going to keep the majority of employees (51%). And I'm pretty sure a contractor isn't going to come into especially a full-time sight and clean house by trying to replace 7 or 8 employees when they get maybe a months notice of who gets what contract. I've seen some sites recently advertising hard for even an SWO and they can't find a person willing to go there with the proper credentials (See "Employment Opportunities" thread).
skobie
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Post by rich on Nov 15, 2019 21:13:31 GMT -5
A couple of points that might be helpful.
The existing CBAs will still be in effect.
This will change the bidding/award process though...bidders now will try to figure out how much below "cost" to bid knowing that they can target certain sites with high vacation payouts and no protection to recoup the amount that they underbid by. Yeah it's a shitty way to do business but when the competition is doing the same they don't have a choice if they want to remain in business.
There are a few ways to prevent your site from being one of those targeted sites though.
If your working at a union site understand what the successor clause in your companies CBA says.
For whatever reason they are not all written the same. Most are ok but if yours doesn't have a sentence in there about a new vendor taking over via a winning bid you probably don't have any protection when the contracts are awarded to those winning bidders.
You might be able to get that language added via an amendment. If you have any doubts about whether your sites CBA protects you consult with a labor lawyer for clarification rather then relying on PATCO or anyone elses interpretation of that clause.
If you are working at a non union site you already know that unfortunately your job will no longer be protected when the contracts change hands. I'm not trying to drum up business for PATCO but the few non union sites that are left are once again the low hanging fruit without that prior EO in effect. There's plenty of time to join a union before the contracts change hands if you're interested in doing that.
The bottom line is if you have any doubts about whether or not your job is protected or if you already know that it isn't there is enough time to get protected.
Good luck.
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Post by rich on Nov 15, 2019 21:46:38 GMT -5
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Post by northwx on Nov 18, 2019 18:10:14 GMT -5
Thanks Rich - it's worth joining the union, and I don't mind you soliciting. I also don't know any of the contractors that play this kind of games with station employees - I did hear of one who cut hours for the SWO at a non-union site and told him he was not eligible for fill in shifts either - I suggested they join PATCO, and sue the contractor for lost wages.
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Post by rich on Nov 19, 2019 6:58:26 GMT -5
That's true north you don't hear of that happening much anymore but remember that a new contract could also mean new contractors. Who knows what the new bidders could try to do to win.
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Post by skobie on Nov 19, 2019 10:54:15 GMT -5
And for those non-Union sites (there are about 35 or so of them), you don't all have to join the same Union either if you don't like what you hear about them. You can look into representation from just about any Local if you have one in mind. They may not take you, but then you can go to the next guy and pick and choose or you can technically even form your own Local, with or without representation from a National/Int'l organization like AFL-CIO, etc., but instead as an independent organization. Remember, you're trying to establish some "house rules" of your employment at your site and you will not get a definite salary increase without a CBA in place. You can certainly mimic a pre-established CBA from another site that I'm sure just about any site would give you a copy of and then just work on the monetary issues. And it's not a bad idea, especially considering that we are in the unusual position of have different contractors in charge every 5 or so years.
Yes, it is well worth it as I can tell you, personally, that our local Wage Determination that I check at least yearly at our site hasn't gone up in wages or H&W in at least 5 years (which is the main reason we went Union at my site back in the late 90s to begin with - when the WD didn't budge for 5 straight years!). At this point, even because of relatively normal 2-3% year over year increases, we're about $8-$9 an hour higher than the WD and almost $3 an hour higher than it in H&W alone, plus other protections like what we're talking about here. If you're sitting around waiting for the WD to change to get a raise, you mise well wait to buy a parcel of land in the San Francisco area when it becomes an island (sorry, Plate Tectonics joke)! It's rarely changed often or significantly enough to give a site some appreciable increases as many times it doesn't budge until, ironically, there is a local CBA established in the area for Weather Observers! Unfortunately, that's the way the government works - half-assed and backwards...
I'll be happy to get a site start the ball rolling that asks.....just PM me.
skobie
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