Biannual Compliance Notice

The information presented here provides information on laws and regulations that apply specifically to employees involved in sponsored programs at Ohio University.  This same information will be forwarded to you biannually to ensure impacted employees remain aware.  Please review the information.  Should you have any questions, please email orsp@ohio.edu for additional information.

Enhancement of Whistleblower Protections

The federal government has enacted a program (Public Law 114-261) to provide protections for employees against reprisal for certain whistleblowing activities in connection with federal grants and contracts.

The program is established at 41 U.S.C. 4712 and Federal Acquisition Regulation 3.908. While the provisions of the program are summarized below, more detailed information about rights and remedies under the program may be found by consulting the establishing materials here.

Under the program, employers cannot discharge, demote, or otherwise discriminate against an employee as a reprisal for disclosing information (except for classified information) that the employee reasonably believes is evidence of any of the following:

• A gross mismanagement of a federal contract or grant;
• A gross waste of federal funds;
• An abuse of authority relating to a federal contract or grant (where “abuse of authority” is defined as an “arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency...or the successful performance of a [federal] contract or grant...”)
• A substantial and specific danger to public health or safety; or
• A violation of law, rule, or regulation related to a federal contract (including competition for or negotiation of a contract) or grant.

The program covers only those employees who disclose these types of information to certain people or entities, identified as:

• A member of Congress or a representative of a committee of Congress;
• An Inspector General;
• The Government Accountability Office;
• A federal employee responsible for contract or grant oversight or management at the relevant federal agency;
• An authorized official of the Department of Justice or other law enforcement agency;
• A court or grand jury; or
• A management official or other employee of Ohio University who has the responsibility to investigate, discover, or address misconduct. In addition, the program covers an employee who initiates or provides evidence of misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a federal contract or grant.

Finally, the program provides a process for whistleblowers to file complaints with federal agencies if they believe they were discriminated against for their disclosure of information, provided those complaints are submitted within three years of the date of the alleged discrimination. Whistleblowers may submit complaints to the Inspector General of the federal agency involved. The Inspector General will generally perform an investigation and submit a report to the federal agency, which then determines whether sufficient basis exists to conclude that discrimination occurred. If the agency determines that discrimination has occurred, the program sets out remedies that may be available, including ordering an institution to reverse the reprisal, reinstate the employee with compensatory damages and employment benefits, and/or pay costs reasonably incurred by the whistleblower in bringing the complaint. The institution has the right to appeal any agency order to the relevant United States court.

Please also review:

Ohio University Policy 03.006:  Whistle-blowing and Retaliation

Prohibition of Trafficking in Persons

The United States Government has adopted a policy prohibiting trafficking in persons including the trafficking-related activities of the contract clause 52.222-50 Combating Trafficking in Persons. 

Contractors, contractor employees, and their agents shall not-

1. Engage in severe forms of trafficking in persons during the period of performance of the contract;
2. Procure commercial sex acts during the period of performance of the contract;
3. Use forced labor in the performance of the contract;
4. Destroy, conceal, confiscate, or otherwise deny access by an employee to the employee’s identity or immigration documents, such as passports or drivers' licenses, regardless of issuing authority;
5.  
   • Use misleading or fraudulent practices during the recruitment of employees or offering of employment, such as failing to disclose, in a format and language understood by the employee or potential employee, basic information or making material misrepresentations during the recruitment of employees regarding the key terms and conditions of employment, including wages and fringe benefits, the location of work, the living conditions, housing and associated costs (if employer or agent provided or arranged), any significant costs to be charged to the employee or potential employee, and, if applicable, the hazardous nature of the work;
   • Use recruiters that do not comply with local labor laws of the country in which the recruiting takes place;
6. Charge employees or potential employees recruitment fees;
7.  
   • Fail to provide return transportation or pay for the cost of return transportation upon the end of employment-
     • For an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract (for portions of contracts performed outside the United States); or
     • For an employee who is not a United States national and who was brought into the United States for the purpose of working on a U.S. Government contract or subcontract, if the payment of such costs is required under existing temporary worker programs or pursuant to a written agreement with the employee (for portions of contracts performed inside the United States); except that-
   • The requirements of paragraphs (b)(7)(i) of this clause shall not apply to an employee who is-
     • Legally permitted to remain in the country of employment and who chooses to do so; or
     • Exempted by an authorized official of the contracting agency from the requirement to provide return transportation or pay for the cost of return transportation;
   • The requirements of paragraph (b)(7)(i) of this clause are modified for a victim of trafficking in persons who is seeking victim services or legal redress in the country of employment, or for a witness in an enforcement action related to trafficking in persons. The contractor shall provide the return transportation or pay the cost of return transportation in a way that does not obstruct the victim services, legal redress, or witness activity. For example, the contractor shall not only offer return transportation to a witness at a time when the witness is still needed to testify. This paragraph does not apply when the exemptions at paragraph (b)(7)(ii) of this clause apply.
8. Provide or arrange housing that fails to meet the host country housing and safety standards; or
9. If required by law or contract, fail to provide an employment contract, recruitment agreement, or other required work document in writing. Such written work document shall be in a language the employee understands. If the employee must relocate to perform the work, the work document shall be provided to the employee at least five days prior to the employee relocating. The employee’s work document shall include, but is not limited to, details about work description, wages, prohibition on charging recruitment fees, work location(s), living accommodations and associated costs, time off, roundtrip transportation arrangements, grievance process, and the content of applicable laws and regulations that prohibit trafficking in persons.

Further information and definitions of terms can be found here.

Ohio Human Trafficking Task Force

The Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act (FCPA) was enacted by Congress in 1977 to bring a halt to the bribery of foreign officials. Bribes to foreign officials do not have to be cash payments and may not always seem like a bribe. It might be socially acceptable and even an everyday practice to make “facilitating payments” to a foreign official, but those payments may be illegal under the FCPA. When traveling internationally one must be mindful of different cultural practices and norms, and at the same time realize that the laws of the United States and other countries still apply regardless of cultural practices. Any facilitating payments must be discussed in advance with University Counsel.

The Foreign Corrupt Practices Act (FCPA) and International Travel:

• Summary of the FCPA
  • Congress enacted the FCPA in 1977
  • The FCPA was amended in 1998 to incorporate the anti-bribery provisions of the Organization for Economic Co-operation and Development (OECD) Convention
    • The OECD Anti-Bribery Convention establishes legally binding standards to criminalize bribery of foreign public officials in international business transactions and provides for a host of related measures that make this effective. It is the first and only international anti-corruption instrument focused on the ‘supply side’ of the bribery transaction.
• Who The FCPA Applies to
  • The anti-bribery provisions of the FCPA make it unlawful for:
    • A U.S. person, including the University to bribe a foreign official for the purpose of:
      • Obtaining or retaining business
      • Or directing business to any person
      • Or for the purpose of otherwise securing an improper advantage.
• What Constitutes a Bribe
  • Bribes are not limited to payments of money, the FCPA also prohibits favors and other inducements that are of value to the recipient
    • Examples include: Lavish or inappropriate gifts and entertainment
  • Both Direct and Indirect bribes to a foreign official are prohibited
    • Indirect bribes made through a third party such as a consultant or other agent are also prohibited
• Elements of a Violation
  • The Actor is the University, University Employees, or any member of the University community conducting University business overseas
  • The individual being bribed is a “foreign official” which means any:
    • Officer or employee of a foreign government or of a public international organization or any department or agency thereof, or any person acting in an official capacity
    • or executives and other employees of state-owned or -controlled businesses or enterprises such as
      • the president of state-owned company
      • or, a professor at a state-run university
• Types of Bribes
  • Donations to a charity favored by the foreign official
  • Uncompensated use of University facilities or property
  • Favors such as hiring a family member or a certain vendor

• Business Purpose Test (The purpose of the payment is more important than the particular duties of the official receiving the payment)
  • Payments are prohibited if they are made in order to assist the University in obtaining or retaining business for or with, or directing business to, any person
  • Corrupt Intent (person making/authorizing payment must have a corrupt intent)
    • Payment must be intended to induce the recipient to misuse his or her official position to direct business wrongfully to, or to secure an improper advantage for, the payor or to any other person
    • The bribe need not succeed, the attempt itself is a crime
  • Knowledge, the payment must be made knowingly
    • Knowingly means the payor is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.
• Permissible Payments and Affirmative Defenses Permisible
  • Facilitating payments for “routine government action” are allowable
  • “Routine government action” DOES NOT INCLUDE DISCRETIONARY actions or decisions by government officials.
    • Discretionary Actions or Decisions include any decision by a foreign official to award new business or to continue business with a particular party
• Facilitating payments may be made only if
  • The proposed payment is legal and customary in the foreign country;
  • No reasonable alternative to making the payment exists; and
  • You discuss the situation in advance with University Legal Counsel