On January 30, 2009, President Obama signed three pro-labor Executive Orders. In the Executive Order entitled "Notification of Employee Rights Under Federal Labor Laws," the new administration is mandating that a notice be posted, notifying all Federal contractor employees of their rights under the various federal labor laws, specifically the employees' right to support and join a labor organization or refrain from doing so. This Executive Order revokes a prior Executive Order issued by the Bush Administration in 2001, mandating a notice that advised employees of their right to refrain from engaging in Union activities.

      In an Executive Order entitled "Economy in Government Contracting," the new administration has prohibited a Federal contractor from receiving reimbursement for costs incurred in resisting a Union organizing attempt, otherwise known as "persuader activities." This Executive Order specifically deems such expenses non-recoverable.

      The last Executive Order issued on January 30, 2009 is entitled "Non-Displacement of Qualified Workers Under Service Contracts." This Executive Order applies to most federal service contracts and relates to a change in contractors under such a contract. It requires the new employer to offer employment to a predecessor contractor's employees before employing anyone else under the contract. There are certain exceptions to this right of first refusal, the most significant one being if the new contractor has employees who have worked at least three months with that contractor and are facing layoff themselves.

      Further, on February 6, 2009, President Obama issued another Executive Order entitled "Use of Project Labor Agreements for Federal Construction Projects." This Executive Order specifically revokes another Executive Order issued by the Bush Administration in 2001, and encourages the use of project labor agreements on federal projects costing at least $25 million. The executive agency is now entitled on a project-by-project basis to require the use of project labor agreements, binding all contractors and subcontractors on the project to specific wage and fringe benefit rates and other working conditions. This Executive Order does not require the use of a project labor agreement on any particular project in excess of $25 million, but rather leaves such decision to the discretion of the particular contracting agency. However, given the pro-labor agenda from the current administration, there is every likelihood that project labor agreements will be the norm, rather than the exception.

      Finally, on January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009, effectively extending the time for filing wage discrimination claims. Under this new law, the issuance of each paycheck constitutes a separate claim of discrimination. It will be much easier for claimants to meet the jurisdictional deadlines in several Federal labor laws, such as Title VII, the Age Discrimination and Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. The new law overturns a recent United States Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007) in which the Supreme Court ruled that a claimant had to file a charge of discrimination after the wage disparity was first instituted by an employer.

      The recent Executive Orders and the signing of the Lilly Ledbetter Fair Pay Act of 2009 should be no surprise to employers. President Obama made his pro-labor positions clear during his Presidential campaign, and his recent actions are just the start of what clearly will be a reversal of certain pro-employer policies from the Bush Administration.

      If you have any questions regarding the Executive Orders or the Lilly Ledbetter Fair Pay Act, please contact either Joe Canterbury or Rick Gover.