As reported in a previous advisory, the United States Court of Appeals for the District of Columbia, in National Association of Manufacturers v. NLRB, recently struck down the National Labor Relations Board’s (NLRB or the “Board”) 2011 rule requiring employers to post notices explaining employees’ rights under the National Labor Relations Act (NLRA or the “Act”). While the decision was generally good news for employers subject to the NLRA, it is important for employers who contract (or subcontract) with the federal government to note that the D.C. Circuit’s decision does not impact their obligation under the Federal Acquisition Regulations (FAR) at 48 C.F.R. 52.222-40 to post a similar notice informing employees of their NLRA rights. This separate requirement for federal contractors and subcontractors was not promulgated by the NLRB, but rather implemented pursuant to Executive Order 13496. Because the FAR requirement is not based on the Board’s statutory authority under the NLRA, but rather on the President’s ability to impose requirements on federal contractors through Executive Order, the D.C. Circuit’s basis for striking down the NLRB’s notice-posting rule does not apply to the similar FAR requirement. The FAR clause is generally contained in all government contracts and subcontracts, including commercial items and commercially available, off-the-shelf items (COTS), that are expected to exceed the simplified acquisition threshold (generally, $150,000) in any calendar year of the contract, unless exempted by the Secretary of Labor, or unless performance is exclusively outside the United States. The notice-posting requirement applies to all employers with government contracts or subcontracts containing the FAR clause.

The U.S. Department of Labor has issued implementing regulations relating to Executive Order 13496, as well as a fact sheet regarding the notice-posting requirement.