Government Contracts and Anti-Retaliation

ANTI-RETALIATION PROVISIONS

Why anti-retaliation provisions are important

• Anti-retaliation protections safeguard basic rights afforded to workers and job applicants.
  • Retaliation, or the fear of it, may prevent, deter or otherwise chill workers from exercising their workplace rights and enable prevailing wage violations to go undetected.
• Retaliation occurs when a contractor, including through a manager, supervisor, or administrator or other agent, takes an adverse action against a worker for engaging in a protected activity.

DOL functions/responsibilities

• The Secretary of Labor – and, by delegation, the Wage Hour Division (WHD) – is responsible for:
  • Conducting investigations to determine compliance with anti-retaliation provisions that are specifically applicable to contractors, including under the Davis-Bacon Act and Davis-Bacon Related Acts (together, DBRA); the Contract Work Hours and Safety Standards Act (CWHSSA); Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors; EO 13658, Establishing a Minimum Wage for Contractors; and EO 14026, Increasing the Minimum Wage for Federal Contractors.
  • Conducting investigations to determine compliance with anti-retaliation provisions that apply to employers more generally, such as under the Fair Labor Standards Act (FLSA); the Family and Medical Leave Act (FMLA); the Migrant and Seasonal Agricultural Worker Protection Act (MSPA); the H-1B, H-1B1, E-3, H-2A, and H-2B provisions of the Immigration and Nationality Act (INA); the United States-Mexico-Canada Agreement (USMCA); the Consumer Credit Protection Act (CCPA); and the Employee Polygraph Protection Act (EPPA).
  • WHD also pursues appropriate remedies when violations are found under any of the laws enforced by WHD.

Contracting/funding agency collaboration

• Coordination with agencies is crucial to protecting workers’ rights under the laws that WHD enforces because workers who are retaliated against may not be aware of their rights or may not know that WHD enforces relevant anti-retaliation provisions.
  • WHD communicates and collaborates with federal, state, and local agencies to protect workers from unlawful retaliation. https://www.dol.gov/agencies/whd/state/contacts
  • Should a contracting officer become aware of any potential retaliatory behavior, they should refer the matter to the appropriate WHD Regional Office in accordance with the procedures set forth in All Agency Memorandum 182.

PROHIBITED ACTIONS AND PROTECTED ACTIVITIES

DBRA (including CWHSSA)

• It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against any worker or job applicant for engaging in protected activities. See 29 CFR 5.5(a)(11), 5.5(b)(5), and 5.18. It is also unlawful to cause any person to perform any such discriminatory actions. Unlawful activities include, but are not limited to, the following:
  • Firing or threatening to fire workers for engaging in protected activities
  • Considering protected activities as a negative factor in deciding whether to hire or promote a worker
  • Taking disciplinary actions such as suspensions against workers for engaging in protected activities
  • Imposing less favorable working conditions on workers for engaging in protected activities
• Workers and job applicants are protected from being retaliated against for the following activities:
  • Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation under any of the DBRA, including CWHSSA
  • Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under any of the DBRA, including CWHSSA
  • Cooperating in any investigation or other compliance action, or testifying in any proceeding under any of the DBRA, including CWHSSA
  • Informing any other person about their rights under any of the DBRA, including CWHSSA

Executive Orders

EO 13076, Establishing Paid Sick Leave for Federal Contractors

• EO 13076 requires federal contractors to provide covered workers with up to 56 hours of paid sick leave annually, including paid leave for family care.
  • Interference and discriminatory actions are prohibited.
• Contractors cannot interfere in any manner with a worker’s accrual or use of paid sick leave as required by the EO or its implementing regulations. See 29 CFR 13.6(a).
• Interference includes, but is not limited to, discouraging a worker from using paid sick leave and reducing a worker’s accrued paid sick leave by more than the amount of the leave actually used.
• Firing or otherwise discriminating against a worker for using or attempting to use paid sick leave as provided under the EO or its regulations, or for filing any complaint, initiating any proceeding, or otherwise asserting any right or claim under the EO, is prohibited. See 29 CFR 13.6(b).
• Firing or otherwise discriminating against a worker for cooperating in any investigation, testifying in any proceeding, or informing any other person about their rights under the EO or its regulations is also prohibited.
• Discrimination under the EO also includes, but is not limited to, a contractor’s considering protected activity as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or a contractor’s counting paid sick leave under a no fault attendance policy.

EO 13658, Establishing a Minimum Wage for Federal Contractors

• EO 13658 requires contractors to pay the applicable minimum wage rate under the EO to workers performing work on or in connection with covered contracts. Contracts of the types covered by EO 13658 that are entered into, renewed or extended on or after January 30, 2022, will generally be subject to a higher minimum wage rate established by EO 14026.
  • EO 13658’s anti-retaliation provision was derived from and intended to mirror the scope of the FLSA’s broad prohibition of retaliation against workers, including protection against retaliation by a prospective or former employer.
  • It is unlawful for any person to discharge or in any other manner discriminate against any worker because they have filed any complaint, instituted or caused to be instituted any proceeding under or related to EO 13658, or testified or are about to testify in any such proceeding. See29 CFR 10.6.

EO 14026, Increasing the Minimum Wage for Federal Contractors

• EO 14026 requires contractors to pay the applicable minimum wage rate under the EO to workers performing work on or in connection with covered contracts that are entered into, renewed or extended on or after January 30, 2022.
• EO 14026’s anti-retaliation provision was derived from and intended to mirror the scope of the FLSA’s broad prohibition of retaliation against workers, including protection against retaliation by a prospective or former employer.
• It is unlawful for any person to discharge or in any other manner discriminate against any worker because they have filed any complaint, instituted or caused to be instituted any proceeding under or related to EO 14026, or testified or are about to testify in any such proceeding. See29 CFR 23.60.

RETALIATION REMEDIES

DBRA

• Make-whole relief and remedial actions under the anti-retaliation provisions of the DBRA (including CWHSSA) are intended to restore the affected worker to the economic and/or employment status the worker would have occupied had the violation never occurred, to remedy any chilling effect of retaliation in the workplace on workers’ willingness to report potential violations of the DBRA or participate in WHD investigations, and to deter retaliation in violation of DBRA.
• Potential remedies may include, but are not limited to:
  • Employment
  • Reinstatement
  • Front pay in lieu of reinstatement
  • Restoration of the terms, conditions, and privileges of the worker’s employment or former employment
  • Promotion
  • Back pay and benefits
  • Compensatory damages
  • Interest on back pay and other monetary loss from date of violation
  • Expungement of warnings, reprimands, or derogatory references
  • The provision of a neutral employment reference
  • The posting of a notice to workers that the contractor or subcontractor agrees to comply with the Davis-Bacon Act and Related Acts anti-retaliation requirements

Executive Orders

• Available remedies under EO 13658 (Establishing a Minimum Wage for Federal Contractors) and EO 14026 (Increasing the Minimum Wage for Federal Contractors) include, but are not limited to, employment, reinstatement, promotion, and the payment of lost wages. See 29 CFR 10.44(b); 29 CFR 23.440(b).
• Available remedies under EO 13076 (Establishing Paid Sick Leave for Federal Contractors) for discrimination may include, but are not limited to, employment, reinstatement, promotion, restoration of leave, lost pay and/or benefits, and liquidated damages. See 29 CFR 13.44(b).
• Available remedies under EO 13076 for interference may include, but are not limited to, any pay and/or benefits denied or lost by reason of the violation; other actual monetary losses sustained as a direct result of the violation; or appropriate equitable or other relief, and liquidated damages. See 29 CFR 13.44(a).

Debarment

• Contractors, subcontractors, and responsible officers, as well as entities in which such parties have an interest, can be debarred for retaliation against workers or job applicants.
• The standard for debarment for retaliation under the DBRA, including CWHSSA, and the Executive Orders is the same as for other violations of those laws – a disregard of obligations. See 29 CFR 5.12(a), 10.44(c), 13.44(d), and 23.440(c).

EXAMPLES OF RETALIATION

Federal contract worker’s promotion denied after inquiring about sick leave

• Bernard works on a federal contract covered by EO 13076. They are a supervisor of maintenance services in a federal building and are about to be promoted. When Bernard emailed their employer, the contractor, asking about the availability of paid sick leave to accompany their spouse’s upcoming medical appointments, Bernard’s planned promotion is cancelled, and they are rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, the manager states the changes were made so Bernard would have fewer responsibilities and more time to help with their spouse’s health care. A representative for the contracting agency, who communicates with Bernard about weekly work orders, contacts WHD on Bernard’s behalf.
• In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its implementing regulations. If WHD finds that retaliation occurred:
  • The contractor may be required to grant Bernard the promotion and return them to their previous work schedule.
  • Bernard may receive back wages to compensate for any difference in wages received compared to the wages they would have received if the alleged retaliatory actions had not occurred.

Contract worker asks about deductions from pay and is denied bonus

• Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks the company payroll department about deductions from their paycheck that may bring their earnings below $16.20 per hour, the minimum wage required by EO 14026 in calendar year 2023. The payroll department refers the question to an officer of the company who soon after directs the payroll department to cancel Geri’s quarterly performance bonus.
• In this scenario, WHD may investigate to determine whether the contractor has violated the anti-retaliation provisions of the EO’s implementing regulations.
  • Geri would be owed payment of the bonus and other wages that may be due as a remedy if WHD found that the bonus was cancelled because Geri reported potential violations of EO 14026. Note that Geri is protected from retaliation even if their report of a potential violation turns out to be mistaken and the deductions were not improper.

Contract worker asks about prevailing wages and is fired

• Taylor works as a roofer for a local roofing contractor and calls WHD confidentially to inquire about prevailing wages for work performed on a DBRA contract that was awarded after October 23, 2023. Taylor tells another roofer what they learned from WHD, and Taylor’s co-worker tells one of the laborers on the project. Later that day, their supervisor overhears two workers talking about the call and terminates Taylor’s employment.
• In this scenario, WHD may investigate to determine whether Taylor was fired for contacting (or being suspected of contacting) WHD about DBRA prevailing wages, which is a protected activity. If WHD finds that retaliation occurred:
  • WHD would seek appropriate remedies, including but not limited to reinstatement, together with back pay and interest. WHD might also require the posting of a notice to workers that the roofing contractor agrees to comply with the DBRA anti-retaliation requirements.