Contractors “ill-prepared” for consequences of hiring criminals???
Franken amendment threatens to take funds from contractors
2010 Defense Appropriations Act provision witholds money from contractors using employee arbitration clauses
By Matthew Weigelt • Feb 22, 2010
Contractors, particularly large defense companies, are ill-prepared for a provision of the 2010 Defense Appropriations Act that stops funds from going to companies that require employees sign arbitration clauses.
Known as the Franken amendment for its sponsor Sen. Al Franken (D-Minn.), the provision gets the federal government more deeply involved in the employer-employee relationship at defense contractors and other companies.
The amendment, which went into effect Feb. 17, prohibits a contractor or subcontractor from receiving any government money in fiscal 2010 if they require employees or independent contractors to sign arbitration clauses. The amendment also bans defense companies from enforcing any existing agreements.
Arbitration is a process by which two parties, such as an employer and an employee, go to a third party to resolve a conflict. It’s a step away from a lawsuit.
Based on a memo regarding the Franken amendment issued Feb. 17, Defense Department’s contracting officers have to change existing contracts for orders worth more than $1 million that will use fiscal 2010 appropriated dollars. The contracts include orders against an indefinite-delivery, indefinite-quantity contract, a General Services Administration Multiple Award Schedule contract, and a contract modified after Feb. 17 where DOD will spend more than $1 million in fiscal 2010 money, according to the memo. Furthermore, defense companies must certify by June that their subcontractors won’t enter into arbitration agreements with their employees either.
The memo also notes that the rule doesn’t apply to the sale of commercial items or commercially available off-the-shelf (COTS) items to the government.
Alan Chvotkin, executive vice president and counsel of the Professional Services Council, said many companies are unprepared to apply the guidance that DOD issued Feb. 17, which is also the law’s deadline for contracting officers to modify contracts.
The memo describes exactly how DOD will address the arbitration provision, and, until it was released, companies were unsure of what was expected of them, he said.
Experts said the changes likely will affect the larger companies in the defense industry, which are more likely to enter such agreements than smaller firms. Larger companies also often work with tiers of subcontractors, which have arbitration rules to meet, too.
“This is a major burden on companies,” said Trey Hodgkins, vice president for national security and procurement policy for the TechAmerica industry group.
Congress didn’t consider that some employees like arbitration, he said. Some people see it as a way to get a fair hearing of a complaint when the company has money for lawyers, Hodgkins said. Moreover, the company often covers the cost of the arbitration process.
“The legislation doesn’t take that into account,” he said.
The appropriations law applies to fiscal 2010 money, which places another burden on the government and contractors. Both parties will have to single out the fiscal 2010 funds and consider the arbitration law for those companies using those funds, Chvotkin and Hodgkins said. Fiscal 2010 dollars may either be spent within the year for service maintenance contracts, while being stretched out over numerous years for major projects, such as modernization programs. Officials will have to take the same approach as agencies have done to single out the Recovery Act funds.
Although the provision currently only relates to DOD spending fiscal 2010 dollars, Chvotkin and Hodgkins expect similar provisions for future years. Congress adopted the arbitration law, and the Obama administration included it in its fiscal 2011 budget proposal. Hodgkins said future provision would likely move to an authorization bill instead of an appropriations bill.
Last October, Franken said his amendment was based on women who have been victims of sexual assault and rape in Iraq and forced to arbitrate their cases. The Senate approved the amendment by a vote of 68 to 30.
However, industry experts said the provision lumps upstanding companies with the unethical firms.
“All industry was painted very negatively with a very broad brush,” Hodgkins said. (Click HERE for original article)
Here’s my answer to this “it’s a major burden” issue:
1. Protect your employees by immediately reporting offenders to the CID and then get rid of them. Don’t just transfer them to another camp as is so often done. Offenders know the worst that will happen to them is they MIGHT get fired.
2. Treat the victim with respect and dignity. (The victims are not all women. Many men are raped in the Middle East)
3. Don’t try to cover up the crime.
4. Be forthright and honest. (This could be a tough one for many Defense contractors)
I’ve been there, done that with KBR and I have no sympathy for them or any other contractor who does not deal with these issues immediately.
Kudos to Jamie Leigh Jones and Al Franken!
Ms Sparky
Wednesday, February 24th 2010 at 2:42 am |
The intent of the Arbitration policy ostensibly, is a mitigation measure which an employee can avail themselves of should all other avenues fail, and is the 4th and final option of the Dispute Resolution Program which is comprised and preceded by:
1. The Open Door Policy
2. Internal Conference
3. Mediation
To expound on each of these avenues which are said to put you on the “Road to Resolution”, examine first the Open Door Policy. As facilitator for the Joint Base Balad Orientation for new hires, rehires, and transfers, I openly espoused to over 1,400 attendees, that should one happen to encounter some sort of difficulty during the course of one’s employment on the project with a coworker or colleague, the best course of action was ALWAYS to try resolving the issue at the lowest level possible.
During the discourse of this topic as part of my 2 hour presentation, I implored everyone to try to resolve their differences one-on-one as the first step, and try to gain the audiences’ agreement, that this is the best course of action. I further sought to gain the attendees’ commitment toward accepting and acknowledging, that promoting personal accountability and responsibility would serve to foster and encourage a fair and balanced environment in which we could all live and work amicably. In other words, everybody just needed to try and get along.
To pontificate in the Elizabethan, tis nobler to try and fail, than never to have tried at all.
In other words, if you tried to work it out mano a mano, but you couldn’t, at least you could say you gave it a shot to some degree, prior to escalating the issue to the next step, which would be to use the Open Door Policy.
According to the slide presentation I referenced as approved by my manager and blessed-off by none other than the Principal Project Manager Guy LaBoa himself, the Open Door Policy is to provide immediate access to an employee’s supervisor or manager.
I would let orientation attendees’ know that the Open Door Policy applied not only to having access to their supervisor or manager, but that it also covered accessibility up to and including any Project Manager inclusive of TTM, CLSS, or BLS.
I would go on to explain that while it wouldn’t be socially or professionally acceptable to just show-up at the PM’s office, throw yourself down on the couch and put your boots up on his coffee table yammering on endlessly with no apparent end in sight or point to make, you could make an appointment in advance, and the PM would grant you audience, listening to whatever you had to say – within reason.
The worst case of abusing this privilege I personally ever had direct knowledge of, involved a particularly unbalanced individual who if you can believe it, prostrated themselves upon then TTM Project Manger Jeff Rock’s floor in a sophomoric display of malcontent for what he perceived as some injustice imagined or real, which had been perpetrated upon him. In other words, this fool laid down on the floor and pitched a royal fit.
This fellow didn’t grace our presence very long, proving not to have the right stuff as concluded by a couple of AAR’s and SMART boards, for having a nasty habit of continually backing into things and clipping T-walls. DRP in Houston concurred with the Top 3’s decision in encouraging the errant individual to seek life elsewhere, coded 3T, not eligible for rehire, do not pass go, do not collect two hundred dollars, end of story, hasta la vista baby.
Moving forward. The Open Door policy mirrored the Flexible Chain of Command I would tell former military, those still in the Reserves, or on terminal leave – but if the problem was your supervisor or manager, you did have the option to go directly to HR, or if it involved a matter of harassment, ER. I emphasized that no one was constrained to first speak with a line supervisor if they had an issue in need of resolution, and could skip any step they wanted to without fear of retaliation. I believed it when I said it.
I told people about how much the company had changed over the years. That it wasn’t the Wild West anymore. That it was a kinder, gentler company culture which predominated now. I would even cross reference the TIP’s module in which it states – and I quote – “Why have this training? Because on January 30th 2004 the United States government resolved that trafficking In Persons will not be facilitated in any way by Service members, civilian employees, indirect hires or Department of Defense contract personnel”.
I could never prove it, but I feel that the resolution referred to was precipitated in part, by the actions of a former KBR employee who worked in Kuwait and Iraq back in 2003, who purportedly was running guns, alcohol, and women in and out of old Cedar. Further, word has it there was an Islamic fatwa, a death warrant issued by an Imam for the individual, with his picture posted online. He escaped with his life, but it is said he was permanently banned from ever entering Iraq. He was a former Marine and went by Flat-top. But I digress.
The second avenue in the Dispute Resolution Program – the Internal Conference, is described as, “Employee can discuss concerns with Ombudsman and company representative”. If you believe this one, I’ve got some ocean-front property in Arizona I’d like to talk to you about.
The third avenue in the Dispute Resolution Program is Mediation – portrayed as, “External mediator assists parties involved to reach an agreement”, followed by Arbitration being the fourth and final avenue available if all other attempts at resolution have been exhausted.
The Franken amendment sounds like the death knell of binding arbitration for LOGCAP employers and rightfully so. I never met Jamie Leigh Jones, but I did know the young lady who was brutally raped at Balad this past November. What a horrific tragedy that someone known by everyone whose life she touched like a ray of sunshine, someone with such an effervescent and bubbly demeanor would be robbed of so much, only to endure further degradation by being told that she must submit to arbitration.