Ms. Lisa M. Wilusz, Director
Office of Procurement and Property Management
Procurement Policy Division
U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, DC 20250-9303
Re: Comment to Direct Final Rule (DFR) & Notice of Proposed Rulemaking (NPRM) concerning “Labor Law Violations” to Department of Agriculture Contracts
Dear Ms. Wilusz,
The Workforce Fairness Institute is an organization committed to educating workers, their employers and citizens in general on important issues affecting the workplace. One such issue is the NPRM issued by the Department of Agriculture (i.e. Department or DoA) which would add new language concerning “Labor Law Violations” to DoA contracts. If approved, contractors with the Department would be required to: one, certify that both they and their subcontractors, in any tier, are in compliance with all “applicable labor laws,” and two, report to the Department any violations found as well as any allegations of violations made by others.
We respectfully submit this comment in strong opposition to the proposed rule. The rule is unnecessary as each of the labor laws applicable to contractors has its own remedial provisions and the Department lacks the statutory authority and has demonstrated no reasonable basis to impose its own. The certification the rule will require will place contractors in the extremely difficult, if not impossible position, of having to accurately declare that they and their subcontractors are in compliance with the plethora of local, state and federal labor laws, rules and regulations, however minor or technical some of their provisions may be. The burden placed on contractors will be enormous in scope and virtually impossible for them to accurately meet. It will increase both the government’s and the contractor’s costs of doing business.
The Proposed Rule Is Inconsistent With White House Initiatives
This proposed rule change has received very little attention and directly contradicts White House calls for a reduction in burdensome regulations that increase business costs discouraging expansion and needed hiring. The Department’s rule will do just that. It will require contractors to expend limited resources on an unnecessary and extensive administrative and legal review instead of on those activities which are the purpose of the contract, the production of a product or the provision of a service, which generates a profit and keeps people employed.
The Proposed Rule Will Increase Government Costs
The threat of treble damages in actions brought by third parties under the False Claims Act will be a disincentive for some contractors, particularly non-union contractors, to bid on Department projects thus limiting the number of bidders and increasing the government’s costs further harming our weakened economy. The only beneficiary of the rule will be labor organizations (and perhaps some competitors). Some unions will succumb to the temptation to file charges, however minor or dubious, of alleged labor law violations in an effort to undermine a contractor’s certification. They will then use False Claims Act litigation as a weapon to drive non-union competitors out of business. And they will add False Claims litigation to their arsenal of corporate campaign activities. The principal goal of the latter is to extract neutrality card check agreements from employers and subject workers to a unionized workplace even if the labor organization did not achieve free and un-coerced majority support.
Basis For Rule Change
We question both the timing and basis for the rule change. The Department’s sole reasoning for the rule is that it “respects and supports the policies and laws reqarding worker labor protections.” There is no evidence, however, that those laws are being violated by Department contractors or, even if they were, a well-structured basis given as to why a certification of this sort is either necessary or appropriate for DoA to insist upon. We suspect the Department also respects and supports the provisions of the Internal Revenue Code. That being the case a certification of compliance with all applicable Internal Revenue Service (IRS) code provisions would appear equally appropriate.
Impact On Contractors
Without question, the Department’s rule will make it more difficult for well-intentioned, hardworking business owners desirous of doing business with DoA to comply with the law. It cannot be overstated: the rule change will alarm the business community because it will be practically impossible for contractors to accurately comply with the certification requirement making them vulnerable to False Claim Act litigation filed by organized labor and other third parties. Many businesses will either cease bidding on Department requests for proposal or be forced to expend exorbitant amounts of time and money trying to comply with the rule so as to avoid severe sanctions.
In sum, the Department has not established the statutory basis for its role in enforcing our local, state and national labor laws and it has not shown reasoned basis for the certification requirement. The rule is bad public policy and should be abandoned.
Workforce Fairness Institute