Posts in By Howard Wolf-Rodda
DOL Finalizes New Independent Contractor Rule: But, Really, it’s Just the Same Old Smell Test

The Department of Labor (“DOL”) has finalized its long-awaited “new” rule that really just restores the decades-old approach to assessing whether a worker is an employee covered by the Fair Labor Standards Act or if they’re a mere independent contractor. Truly this is little more than the same old smell test that employers have lived with for ages.

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Davis-Bacon: When Will Federal Contracts Catch Up with DOL's New "Operation of Law" Rule

Last week my distinguished colleague wrote about the new Davis Bacon “operation of law” rule that requires the use of a new DOL-issued contract clause. But what’s happening now? Is there a currently valid contract clause that federal Contracting Officers can modify into a contract? For now, the answer appears to be no.

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Figure it Out: Complying with the Space Requirements of the PUMP at Work Act

Enacted in late 2022, the PUMP at Work Act expanded the right of nursing mothers to reasonable breaks and appropriate space to express breast milk in the first year of a child’s life. I recently ate at a small restaurant and wondered how it might be able to provide the space for a nursing mother. Barring truly significant hardship, my advice is to just figure it out.

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Deep in the Heart of Texas: Injunction Bars Federal Contractor Minimum Wage

Last week a Texas judge rejected President Biden’s Executive Order that requires federal contractors to pay a minimum wage when they are working on or in connection with a covered federal contract. This is the latest installment in the ongoing battle over the President’s use of Executive Orders to direct federal contractors to adopt workplace rules under the federal Procurement Act.

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How Low Can You Go? GAO Rejects Protest Alleging Below Cost Wage Rates

Here’s some old news that bears repeating. When it comes to prices offered to the Government to perform a fixed-price service contract, GAO won’t second guess the award of a contract with low-ball prices even though it might appear there’s no way the contractor would pay the minimum wage rates required by the Service Contract Act.

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Facing an FLSA Investigation? Here's a Pro Tip - Don't Hire a Fake Priest

When we’re assisting clients respond to Department of Labor investigations, one question that regularly comes up is “what can I say to my employees about all this?” We may have a range of suggestions depending on the circumstances, but we’ll never advise you to hire a fake priest to dupe employees into confessing workplace sins.

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A Look Behind the Curtain: Recent Bid Protest Decision Offers Insight into Corrective Actions

Conventional wisdom holds that bid protests are an uphill battle. It can be tough to win them. And sometimes when you win, you still lose because the contract’s still awarded to your competitor. A recent bid protest decision illustrates how a successful protest prompted the agency to appoint a new evaluation team that changed the outcome.

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You're Not Too Big Unless You're Asked if You're Too Big: Recertification of Small Business Status

Contractors who are experienced in the world of multiple award contracts likely are familiar with how the small business regulations operate under those contract vehicles. However, there are some wrinkles. Small businesses that are considering whether to dive into this world should learn more about the maze of small business regulations so they can anticipate the potential pitfalls that could come with success.

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Facing a Size Protest? SBA Might Want Your Tax Returns

Yesterday’s tax filing deadline brought to mind a recent Small Business Administration decision in which a contractor lost out because it didn’t supply its tax returns. If SBA knocks on your door because a protest has been filed, don’t leave things to chance. Respond in a timely and complete manner—you want to make it easy for the SBA to see things your way.

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What the. . .? Another Arrest for Failure to Respond to DOL Subpoena

DOL recently announced that US Marshals arrested a New York restaurateur for failure to respond to a subpoena as part of a Fair Labor Standards Act investigation. This is the second such arrest in the last few months. As I said in my blog about the first arrest - things simply go better when employers take DOL investigations seriously.

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Check the Water Before You Dive In: GAO Rejects Protest that Government Should Have Clarified Application of Service Contract Act

Contractors are on their own when it comes to determining what wages they must pay under a contract covered by the Service Contract Act. That’s exactly what the Government Accountability Office held when it denied the protest of a prospective contractor that sought a ruling about when under a diving services contract it should pay prevailing wages to its divers.

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