S.Amdt. 1075

SA 1075. Mr. FRANKEN submitted an amendment intended to be proposed
to amendment SA 1003 proposed by Mr. McCain (for himself and Mr. Reed)
to the bill H.R. 2810, to authorize appropriations for fiscal year 2018
for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

At the end of title VIII, add the following:

Subtitle K--Fair Pay and Safe Workplaces

SEC. 899G. SHORT TITLE.

This subtitle may be cited as the ``Fair Pay and Safe
Workplaces Act of 2017''.

SEC. 899H. DEFINITIONS.

In this subtitle:
(1) Covered contract.--The term ``covered contract'' means
a Federal contract for the procurement of property or
services, including construction, valued in excess of
$500,000.
(2) Covered subcontract.--The term ``covered
subcontract''--
(A) means a subcontract for property or services under a
Federal contract that is valued in excess of $500,000; and
(B) does not include a subcontract for the procurement of
commercially available off-the-shelf items.
(3) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.

SEC. 899I. FINDINGS.

Congress makes the following findings:
(1) Over the last two decades, the role of private
contractors in public projects has significantly increased.
Having doubled the amount of taxpayer dollars spent on
contract labor since the year 2000, the Federal Government,
according to recent estimates, now purchases more than
$500,000,000,000 worth of goods and services from private
firms, which employ 26,000,000 workers.
(2) According to a majority staff report released in 2013
by the Committee on Health, Education, Labor, and Pensions of
the Senate (the ``HELP Committee''), in recent years, dozens
of major Federal contractors have repeatedly violated basic
Federal labor laws with impunity. From 2007 through 2012, 49
individual Federal contractors triggered 1,776 enforcement
actions for violating basic health and safety standards,
discriminating against workers, or failing to pay workers
what they earned. Despite these repeated infractions, those
49 companies received $81,000,000,000 in Federal contracts in
fiscal year 2012 alone.
(3) The HELP Committee staff report also showed that, from
2007 through 2012, companies holding large Federal contracts
accounted for 48 percent of the penalties assessed by the
Occupational Safety and Health Administration's list of top
100 violators, and incurred more than $87,000,000 in
penalties. In fact, 8 of these companies were found to be
directly responsible for the deaths of 42 United States
workers. Nevertheless, in fiscal year 2012, United States
taxpayers provided these companies with $3,400,000,000 in
Federal contracts.
(4) In addition to these health and safety violations, the
HELP Committee report showed that Federal contractors have
been repeatedly cited for violations of wage laws.
Investigations of infractions by the Department of Labor
often produce either a settlement or litigation, both of
which can result in a back pay award for victimized workers.
Between 2007 and 2012, Federal contractors accounted for 35
of the 100 largest back pay awards, and 32 Federal
contractors were responsible for more than 40 percent of the
total amount of unpaid back wages awarded during this period.
Despite being compelled to pay more than $82,000,000 in back
wages, these 32 violators received $73,100,000,000 of Federal
contracts in fiscal year 2012.
(5) The fact that repeat offenders continue to receive
lucrative Federal contracts indicates the profound lack of
accountability in the present system of Federal contracting.
Such a gap necessitates reforms to the relationship between
contracting officers and the Department of Labor as well
expanding the number of supervision and enforcement tools
available to both, which will ensure contractor compliance
with Federal labor laws.
(6) In 2014, President Barack Obama issued Executive Order
13673 on Fair Pay and Safe Workplaces. In the executive
order, the President determined that ``contractors that
consistently adhere to labor laws are more likely to have
workplace practices that enhance productivity and increase
the likelihood of timely, predictable, and satisfactory
delivery of goods and services to the Federal Government.
Helping executive departments and agencies to identify and
work with contractors with track records of compliance will
reduce execution delays and avoid distractions and
complications that arise from contracting with contractors
with track records of noncompliance.''
(7) In furtherance of economy and efficiency in
contracting, the Fair Pay and Safe Workplaces Executive Order
took a three-pronged approach to these problems:
(A) Companies were required to disclose any violations of
Federal labor law when applying for a contract. Those with
poor track records of compliance were compelled to prove they
had taken action to remedy these infractions.
(B) Federal contractors were required to give their
employees pay stubs each pay period documenting hours,
overtime, and wages to prevent wage theft.
(C) To protect workers from discrimination or harassment,
the executive order prohibited the use of forced arbitration
agreements in employment contracts by companies with large
Federal contracts of $1,000,000 or more.
(8) Parties who contract with the Federal Government should
ensure that they understand and comply with labor laws, which
are designed to promote safe, healthy, fair, and effective
workplaces.
(9) Contractors and subcontractors that consistently adhere
to labor laws are more likely to have workplace practices
that enhance productivity and increase the likelihood of
timely, predictable, and satisfactory delivery of goods and
services to the Federal Government.

SEC. 899J. STATEMENT OF POLICY.

It is the policy of the United States that the Federal
Government shall promote economy and efficiency in
procurement by awarding contracts to contractors that promote
safe, healthy, fair, and effective workplaces through
compliance with labor laws, and by promoting opportunities
for contractors to do the same when awarding subcontracts.

SEC. 899K. REQUIRED PRE-CONTRACT AWARD ACTIONS.

(a) Disclosures.--The head of an executive agency shall
ensure that the solicitation for a covered contract requires
the offeror--
(1) to represent, to the best of the offeror's knowledge
and belief, whether there has been any administrative merits
determination, arbitral award or decision, or civil judgment,
as defined in guidance issued by the Secretary of Labor,
rendered against the offeror in the preceding 3 years for
violations of--
(A) the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.);
(B) the Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.);
(C) the Migrant and Seasonal Agricultural Worker Protection
Act (29 U.S.C. 1801 et seq.);
(D) the National Labor Relations Act (29 U.S.C. 151 et
seq.);
(E) subchapter IV of chapter 31 of title 40, United States
Code (commonly known as the ``Davis-Bacon Act'');
(F) chapter 67 of title 41, United States Code (commonly
known as the ``Service Contract Act'');
(G) Executive Order 11246 (42 U.S.C. 2000e note; relating
to equal employment opportunity);
(H) section 503 of the Rehabilitation Act of 1973 (29
U.S.C. 793);
(I) section 4212 of title 38, United States Code;
(J) the Family and Medical Leave Act of 1993 (29 U.S.C.
2601 et seq.);
(K) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.);
(L) the Americans with Disabilities Act of 1990 (42 U.S.C.
12101 et seq.);
(M) the Age Discrimination in Employment Act of 1967 (29
U.S.C. 621 et seq.);
(N) Executive Order 13658 (79 Fed. Reg. 9851; relating to
establishing a minimum wage for contractors); or
(O) equivalent State laws, as defined in guidance issued by
the Secretary of Labor;
(2) to require each subcontractor for a covered
subcontract--
(A) to represent, to the best of the subcontractor's
knowledge and belief, whether there has been any
administrative merits determination, arbitral award or
decision, or civil judgment, as defined in guidance issued by
the Department of Labor, rendered against the subcontract in
the preceding three years for violations of any of the labor
laws and executive orders listed under paragraph (1); and
(B) to update such information every 6 months for the
duration of the subcontract; and
(3) to consider the information submitted by a
subcontractor pursuant to paragraph (2) in determining
whether the subcontractor is a responsible source with a
satisfactory record of integrity and business ethics--
(A) prior to awarding the subcontract; or
(B) in the case of a subcontract that is awarded or will
become effective within 5 days of the prime contract being
awarded, not later than 30 days after awarding the
subcontract.
(b) Pre-award Corrective Measures.--
(1) In general.--A contracting officer, prior to awarding a
covered contract, shall, as part of the responsibility
determination, provide an offeror who makes a disclosure
pursuant to subsection (a) an opportunity to report any steps
taken to correct the violations of or improve compliance with
the labor laws listed in paragraph (1) of such subsection,
including any agreements entered into with an enforcement
agency.
(2) Consultation.--The executive agency's Labor Compliance
Advisor designated pursuant to section 899M, in consultation
with relevant enforcement agencies, shall advise the
contracting officer whether agreements are in place or are
otherwise needed to address appropriate remedial measures,
compliance assistance, steps to resolve issues to avoid

[[Page S5764]]

further violations, or other related matters concerning the
offeror.
(3) Responsibility determination.--The contracting officer,
in consultation with the executive agency's Labor Compliance
Advisor, shall consider information provided by the offeror
under this subsection in determining whether the offeror is a
responsible source with a satisfactory record of integrity
and business ethics. The determination shall be based on the
guidelines established by the Department of Labor under
subsection (b)(1) of section 899N and the Federal Acquisition
Regulatory Council under subsection (a) of such section.
(c) Referral of Information to Suspension and Debarment
Officials.--As appropriate, contracting officers, in
consultation with their executive agency's Labor Compliance
Advisor, shall refer matters related to information provided
pursuant to paragraphs (1) and (2) of subsection (a) to the
executive agency's suspension and debarment official in
accordance with agency procedures.

SEC. 899L. POST-AWARD CONTRACT ACTIONS.

(a) Information Updates.--The contracting officer for a
covered contract shall require that the contractor update the
information provided under paragraphs (1) and (2) of section
899K(a) every 6 months.
(b) Corrective Actions.--
(1) Prime contract.--The contracting officer, in
consultation with the Labor Compliance Advisor designated
pursuant to section 899M, shall determine whether any
information provided under subsection (a) warrants corrective
action. Such action may include--
(A) an agreement requiring appropriate remedial measures;
(B) compliance assistance;
(C) resolving issues to avoid further violations;
(D) the decision not to exercise an option on a contract or
to terminate the contract;
(E) referral to the agency suspending and debarring
official; or
(F) such other action as the contracting officer deems
appropriate.
(2) Subcontracts.--The prime contractor for a covered
contract, in consultation with the Labor Compliance Advisor,
shall determine whether any information provided under
section 899K(a)(2) warrants corrective action, including
remedial measures, compliance assistance, and resolving
issues to avoid further violations.
(3) Department of labor.--The Department of Labor shall, as
appropriate, inform executive agencies of its investigations
of contractors and subcontractors on current Federal
contracts for purposes of determining the appropriateness of
actions described under paragraphs (1) and (2).

SEC. 899M. LABOR COMPLIANCE ADVISORS.

(a) In General.--Each executive agency shall designate a
senior official to act as the agency's Labor Compliance
Advisor.
(b) Duties.--The Labor Compliance Advisor shall--
(1) meet quarterly with the Deputy Secretary, Deputy
Administrator, or equivalent executive agency official with
regard to matters covered under this subtitle;
(2) work with the acquisition workforce, agency officials,
and agency contractors to promote greater awareness and
understanding of labor law requirements, including record
keeping, reporting, and notice requirements, as well as best
practices for obtaining compliance with these requirements;
(3) coordinate assistance for executive agency contractors
seeking help in addressing and preventing labor violations;
(4) in consultation with the Department of Labor or other
relevant enforcement agencies, and pursuant to section
899K(b) as necessary, provide assistance to contracting
officers regarding appropriate actions to be taken in
response to violations identified prior to or after contracts
are awarded, and address complaints in a timely manner, by--
(A) providing assistance to contracting officers and other
executive agency officials in reviewing the information
provided pursuant to subsections (a) and (b) of section 899K
and section 899L(a), or other information indicating a
violation of a labor law in order to assess the serious,
repeated, willful, or pervasive nature of any violation and
evaluate steps contractors have taken to correct violations
or improve compliance with relevant requirements;
(B) helping agency officials determine the appropriate
response to address violations of the requirements of the
labor laws listed in section 899K(a)(1) or other information
indicating such a labor violation (particularly serious,
repeated, willful, or pervasive violations), including
agreements requiring appropriate remedial measures, decisions
not to award a contract or exercise an option on a contract,
contract termination, or referral to the executive agency
suspension and debarment official;
(C) providing assistance to appropriate executive agency
officials in receiving and responding to, or making referrals
of, complaints alleging violations by agency contractors and
subcontractors of the requirements of the labor laws listed
in section 899K(a)(1); and
(D) supporting contracting officers, suspension and
debarment officials, and other agency officials in the
coordination of actions taken pursuant to this subsection to
ensure agency-wide consistency, to the extent practicable;
(5) as appropriate, send information to agency suspension
and debarment officials in accordance with agency procedures;
(6) consult with the agency's Chief Acquisition Officer and
Senior Procurement Executive, and the Department of Labor as
necessary, in the development of regulations, policies, and
guidance addressing labor law compliance by contractors and
subcontractors;
(7) make recommendations to the agency to strengthen agency
management of contractor compliance with labor laws;
(8) publicly report, on an annual basis, a summary of
agency actions taken to promote greater labor compliance,
including the agency's response pursuant to this order to
serious, repeated, willful, or pervasive violations of the
requirements of the labor laws listed in section 899K(a)(1);
and
(9) participate in the interagency meetings regularly
convened by the Secretary of Labor pursuant to section
899N(b)(2)(C).

SEC. 899N. MEASURES TO ENSURE GOVERNMENT-WIDE CONSISTENCY.

(a) Federal Acquisition Regulation.--The Federal
Acquisition Regulatory Council, in consultation with the
Director of the Office of Management and Budget and the
Secretary of Labor, shall amend the Federal Acquisition
Regulation--
(1) to identify, for the purpose of integrity and business
ethics determinations made by contracting officers and
contractors (with respect to subcontractors), considerations
for determining the significance of serious, repeated,
willful, or pervasive violations of the labor laws listed in
section 899K(a)(1);
(2) to provide that, subject to the determination of the
executive agency, in most cases a single violation of law may
not necessarily give rise to a determination of lack of
responsibility, depending on the nature of the violation;
(3) ensure appropriate consideration is given to any
remedial measures or mitigating factors, including any
agreements by contractors or other corrective action taken to
address violations; and
(4) ensure that contracting officers and Labor Compliance
Advisors send information, as appropriate, to suspension and
debarment officials.
(b) Department of Labor.--
(1) Guidance.--
(A) In general.--The Secretary of Labor (in this subsection
referred to as the ``Secretary'') shall develop guidance, in
consultation with the executive agencies responsible for
enforcing the requirements of the labor laws listed in
section 899K(a)(1), to assist such agencies in determining
whether administrative merits determinations, arbitral awards
or decisions, or civil judgments were issued for serious,
repeated, willful, or pervasive violations of such
requirements for purposes of implementation of any final rule
issued by the Federal Acquisition Regulatory Council pursuant
to this subtitle.
(B) Standards.--Such guidance shall--
(i) where available, incorporate existing statutory
standards for assessing whether a violation is serious,
repeated, willful, or pervasive; and
(ii) where no such statutory standards exist, develop
standards that take into account--

(I) for determining whether a violation is ``serious'' in
nature, the number of employees affected, the degree of risk
posed or actual harm caused by the violation to health,
safety, or well-being of a worker, the amount of damages
incurred or fines or penalties assessed with regard to the
violation, and other considerations as the Secretary
determines appropriate;
(II) for determining whether a violation is ``repeated'' in
nature, whether the entity has had one or more additional
violations of the same or a substantially similar requirement
during the previous 3 years;
(III) for determining whether a violation is ``willful'' in
nature, whether the entity knew of, showed reckless disregard
for, or acted with plain indifference to the matter of
whether its conduct was prohibited by the requirements of the
labor laws listed in section 899K(a)(1); and
(IV) for determining whether a violation is ``pervasive''
in nature, the number of violations of such a requirement, or
the aggregate number of violations of such requirements, in
relation to the size of the entity.

(2) Additional activities and labor compliance
agreements.--The Secretary shall--
(A) develop a process--
(i) for the Labor Compliance Advisors designated pursuant
to section 899M to consult with the Secretary in carrying out
their responsibilities under section 899M(b)(4);
(ii) by which contracting officers and Labor Compliance
Advisors may give appropriate consideration to determinations
and agreements made by the Secretary and the heads of other
executive agencies; and
(iii) by which contractors may enter into agreements
regarding steps a prospective contractor will take to ensure
compliance with applicable labor laws (as described in
section 899K of this Act) with the Secretary, or the head of
another executive agency, prior to being considered for a
contract;
(B) review data collection requirements and processes, and
work with the Director of the Office of Management and
Budget, the Administrator for General Services, and other
agency heads to improve such requirements and processes, as
necessary, to reduce the burden on contractors and increase
the amount of information available to executive agencies;
(C) regularly convene interagency meetings of Labor
Compliance Advisors to share and promote best practices for
improving labor law compliance; and

[[Page S5765]]

(D) designate an appropriate contact for executive agencies
seeking to consult with the Secretary with respect to the
requirements and activities under this subtitle.
(c) Office of Management and Budget.--The Director of the
Office of Management and Budget shall--
(1) work with the Administrator of General Services to
include in the Federal Awardee Performance and Integrity
Information System the information provided by contractors
pursuant to sections 899K(a)(1) and 899L(a) and data on the
resolution of any issues related to such information; and
(2) designate an appropriate contact for agencies seeking
to consult with the Office of Management and Budget on
matters arising under this subtitle.
(d) General Services Administration.--
(1) In general.--The Administrator of General Services, in
consultation with other relevant executive agencies, shall
establish a single Internet website for Federal contractors
to use for all Federal contract reporting requirements under
this subtitle, as well as any other Federal contract
reporting requirements to the extent practicable.
(2) Agency cooperation.--The heads of executive agencies
with covered contracts shall provide the Administrator of
General Services with the data necessary to maintain the
Internet website established under paragraph (1).
(e) Minimizing Compliance Burden.--In amending the Federal
Acquisition Regulation pursuant to subsection (a) and
developing guidance pursuant to subsection (b), the Federal
Acquisition Regulatory Council and the Secretary of Labor,
respectively, shall minimize, to the extent practicable, the
burden on contractors and subcontractors of complying with
this subtitle, particularly small business concerns (as that
term is defined in section 3 of the Small Business Act (15
U.S.C. 632)) and small non-profit organizations.

SEC. 899O. PAYCHECK TRANSPARENCY.

(a) In General.--Each executive agency entering into a
covered contract, or covered subcontract, shall ensure that
provisions in solicitations for such contracts, or
subcontracts, and clauses in such contracts, or subcontracts,
shall provide that, for each pay period, contractors or
subcontractors provide each individual described in
subsection (b) with a document containing information with
respect to such individual for the pay period concerning
hours worked, overtime hours worked, pay, and any additions
made to or deductions made from pay.
(b) Individuals Described.--An individual described in this
subsection is any individual performing work under a contract
or subcontract for which the executive agency is required to
maintain wage records under--
(1) the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et
seq.);
(2) subchapter IV of chapter 31 of title 40, United States
Code (commonly referred to as the ``Davis-Bacon Act'');
(3) chapter 67 of title 41, United States Code (commonly
known as the ``Service Contract Act''); or
(4) an applicable State law.
(c) Exceptions.--
(1) Employees exempt from overtime requirements.--The
document provided under subsection (a) to individuals who are
exempt under section 13 of the Fair Labor Standards Act of
1938 (29 U.S.C. 213) from the overtime compensation
requirements under section 7 of such Act (29 U.S.C. 207)
shall not be required to include a record of the hours worked
if the contractor or subcontractor informs the individual of
the status of such individual as exempt from such
requirements.
(2) Substantially similar state laws.--The requirements
under this section shall be deemed to be satisfied if the
contractor or subcontractor complies with State or local
requirements that the Secretary of Labor has determined are
substantially similar to the requirements under this section.
(d) Independent Contractors.--If the contractor or
subcontractor is treating an individual performing work under
a covered contract or subcontract as an independent
contractor, and not as an employee, the contractor or
subcontractor shall provide the individual a document
informing the individual of their status as an independent
contractor.

SEC. 899P. COMPLAINT AND DISPUTE TRANSPARENCY.

(a) In General.--
(1) Contracts.--The head of an executive agency may not
enter into a contract for the procurement of property or
services valued in excess of $1,000,000 unless the contractor
agrees that any decision to arbitrate the claim of an
employee or independent contractor performing work under the
contract that arises under title VII of the Civil Rights Act
of 1964 (42 U.S.C. 2000e et seq.) or any tort related to or
arising out of sexual assault or sexual harassment may only
be made with the voluntary consent of the employee or
independent contractor after the dispute arises.
(2) Subcontracts.--The Secretary shall require that a
contractor covered under paragraph (1) incorporate the
requirement under such subsection into each subcontract for
the procurement of property or services valued in excess of
$1,000,000 at any tier under the contract.
(b) Exceptions.--
(1) Contracts for commercial items and commercially
available off-the-shelf items.--The requirements under
subsection (a) do not apply to contracts or subcontracts for
the acquisition of commercial items or commercially available
off-the-shelf items (as those terms are defined in sections
103(1) and 104, respectively, of title 41, United States
Code).
(2) Employees and independent contractors not covered.--The
requirements under subsection (a) do not apply with respect
to an employee or independent contractor who--
(A) is covered by a collective bargaining agreement
negotiated between the contractor or subcontractor and a
labor organization representing the employee or independent
contractor; or
(B) entered into a valid agreement to arbitrate claims
covered under such subsection before the contractor or
subcontractor bid on the contract covered under such
subsection, except that such requirements do apply--
(i) if the contractor or subcontractor is permitted to
change the terms of the arbitration agreement with the
employee or independent contractor; or
(ii) in the event the arbitration agreement is renegotiated
or replaced after the contractor or subcontractor bids on the
contract.

SEC. 899Q. IMPLEMENTING REGULATIONS.

Not later than 180 days after the date of the enactment of
this Act, the Federal Acquisition Regulatory Council shall,
in addition to carrying out section 899N(a), amend the
Federal Acquisition Regulation to carry out the other
provisions of this subtitle, including sections 899O and
899P.

SEC. 899R. ANNUAL REPORT.

(a) In General.--Not later than 18 months after the date of
the enactment of this Act, and annually thereafter, the
Secretary of Labor shall submit to the Committee on Health,
Education, Labor, and Pensions of the Senate and the
Committee on Education and the Workforce of the House of
Representatives a report on actions taken pursuant to this
subtitle.
(b) Information Included.--The report required under this
section shall include the following information:
(1) The number of instances that each executive agency, in
accordance with sections 899K and 899L, required remedial
measures, decided not to award a contract or exercise an
option on a contract, terminated a contract, or referred an
entity to an agency suspension and disbarment official.
(2) The number of unique contractors that were subject to
actions described in paragraph (1).

SEC. 899S. SEVERABILITY.

If any provision of this subtitle or the application of any
such provision to any person or circumstance is held to be
unconstitutional, the remaining provisions of this subtitle
and the application of such provisions to any person or
circumstance shall not be affected by such holding.

SEC. 899T. RULES OF CONSTRUCTION.

Nothing in this subtitle shall be construed as--
(1) impairing or otherwise affecting the authority granted
by law to an executive agency or the head thereof;
(2) impairing or otherwise affecting the functions of the
Director of the Office of Management and Budget relating to
budgetary, administrative, or legislative proposals; or
(3) creating any right or benefit, substantive or
procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other
person.
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