As the national leader and voice of the contract security industry, NASCO is constantly interacting with Congress, federal agencies, state legislators, regulators, the courts, and the media on a variety of industry related issues. NASCO also works closely with state associations, business groups, contractor organizations, and security organizations on mutual issues of concern.
2016 Year in Review
The year 2016 was another busy and productive year for NASCO on a variety of fronts. While there were many positive developments for NASCO and the industry, the biggest highlight was a NASCO legal victory in October, in a lawsuit filed by NASCO and the Associated Builders and Contractors (ABC) that stopped the implementation of the much-maligned federal contractor “Blacklisting Rule.”
Starting at the state level, over the past year, NASCO was directly involved or provided support in a number of activities.
In Florida, NASCO worked with FASCO to successfully have language taken out of a bill --- that later became law --- which would have removed the specific requirement currently in Florida law that the State use a formal rule-making process in order to make changes related to the requirements for armed officer health and training, and company conducted background checks.
Also in Florida this year, NASCO supported another successful FASCO effort to pass a bill that sets up an FBI administered fingerprint based “rap back” program that starting in 2017 will notify the State, who in in turn will notify the employer.
In Arkansas, continuing an effort from 2015, NASCO weighed in formally with the State Attorney General over a legally dubious move by the State Police to no longer allow for security officers to put on the job while their license application was pending. NASCO’s arguments became the foundation for a successful industry legislative effort in Arkansas to amend current law so that a security officer could still be posted while his or her license application is pending, if the officer is under the supervision of a licensed officer.
In Maryland, NASCO weighed in with legislators in support of common sense legislation that would allow for the alignment of the renewal periods for security officer licenses and gun permits. While the bill did not pass in 2016, NASCO believes it can pass in 2017.
NASCO also supported legislative efforts in Michigan and Tennessee to increase the training requirements for security officer. Both these bills passed one chamber of the state legislature. While the Tennessee bill’s future prospects are tenuous, the Michigan bill will be back in 2017 and its sponsors believe it can pass.
A continuing common theme in NASCO’s efforts among the states is addressing delays in the security officer licensing process. Delays in the licensing process are costly and create manpower shortages, yet with decreasing state licensing resources combined with greater demand on those resources, this is going to be a long-term problem for the industry. NASCO working with states and others to find innovative ways to address this problem.
Another growing state regulatory issue are new or enhanced requirements related to mental health evaluations for armed security officers, and NASCO worked its partners FASCO and CALSAGA on this issue. NASCO also continued to raise industry issues with state regulators through its participation in the International Association of Security and Investigative Regulators (IASIR). This year, like the last two years, NASCO was the lead sponsor of the annual IASIR Conference.
Finally, in 2016 NASCO entered into agreement with the John Jay College Center for Private Security and Safety for John Jay to produce and maintain an electronic database of state laws and regulations related to armed and unarmed security officer licensing requirements. This database will be continually updated and will be of great benefit to NASCO members.
Going up to the federal level, NASCO continued to be relied upon by Congress, federal agencies and the Government Accountability Office as the representative and source of information related to private security.
Unfortunately, on NASCO’s signature long-time congressional issue, passing legislation that will provide security officer employers with non-state based access to obtain FBI checks on officers and applicants, the gridlock in Congress and other factors have kept this effort grounded. NASCO though is very appreciative to Senator Pat Toomey of Pennsylvania for re-introducing the Security Officer Screening Improvement Act in 2016 (S.2543) and will go back at it in the 115th Congress.
There is no doubt that greater access to FBI checks for security officers, as well as access to other information the FBI might have on security officers, is more important than ever, and at the 2016 ASIS Seminar, NASCO Executive Director Steve Amitay publicly questioned FBI Director Toomey about the need for more information sharing between the FBI and the private security companies.
Another priority federal issue for NASCO has been to support the TSA “Screening Partnership Program” which allows airports to use private contractors to operate passenger and baggage screening at airport instead of TSA officers. This issue garnered a lot of attention at the beginning of summer with major airports, experiencing hour’s long security lines resulting in thousands of missed flights, threatened to go private if TSA did do not something.
However, under the Obama Administration, the SPP was not supported at all and often actions were taken to disincentivize airports from joining the program. Nonetheless, NASCO and its members continued to dialogue with congressional and federal officials on the program, and there were some positive developments.
In November 2015, after over a year of work, including numerous meetings with NASCO, the GAO released a study on the relative cost between federal and private screeners that completely undercut past TSA and AFGE assertions that private screeners were more expensive than federal screeners or at best the same cost. To the contrary, the GAO Report concluded that on average private screeners cost the federal government 20% less than federal screeners. NASCO spread this message in 2016.
Second, in the summer of 2016, TSA completed its transition to a new acquisition process for the SPP. Instead of using standalone RFP’s, SPP contracts would be awarded through a process where pre-qualified companies that have been awarded 10 year Indefinite Delivery Indefinite Quantity contracts bid on Task Orders for SPP airports. This process was successfully used later in the summer to make awards for the San Francisco and Sonoma County Airport SPP contracts.
Third, in December, just before Congress adjourned, legislation was introduced that could get more airports interested in the SPP. H.R. 6497, the “TSA Screening Transparency and Accountability Act” introduced by Rep. Buddy Carter (R-GA) that would allow airport officials to see data on the performance of the screeners at their airports and at similar SPP airports. This bill could make airports more willing to consider the SPP because by law the performance of SPP screeners must be at a level equal to or better than that of screeners at comparable federal airports.
Also over the past year, NASCO continued to work the related issue of airport employee screening making the case to Congress and others that despite claims to contrary, full employee screening programs is not too costly and it is more effective than random screening.
Over at the Federal Protective Service, which utilizes over 14,000 contract security officers as “Protective Security Officers” or PSO’s to protect close to 1000 U.S. government facilities, work on several initiatives to improve the training for PSO’s, as well as post-tracking continued. Some of those efforts, such as a new National Lesson Plan, and turning over all the PSO training to contractors should come to fruition this coming year.
NASCO also worked with members of Congress to advance a federal building (GSA) related bill that included a NASCO backed provision to strengthen the detention authority of PSO’s on federal property and federalize the firearms “carry authority” for PSO’s. This bill, the “Public Building Reform and Savings Act,” passed the House but stalled in the Senate. Again, NASCO will go back at this effort in the 115th Congress.
On the more macro federal contracting level, in 2016 the NASCO Board agreed to participate as a named/lead plaintiff in a lawsuit challenging the euphemistically named “Fair Pay and Safe Workplace” Executive Order. More commonly known as the Federal Contractor Blacklisting Rule, the Rule will allow federal procurement officials to “blacklist” a contractor from bidding on a federal contract based on that contractor’s record of labor law violations. While none of those underlying labor laws provides for such a punishment, what was most dangerous about the Rule was that the violations for which a contractor would be judged also included preliminary ‘findings’ by labor agency staffers even though there had been no adjudication of the issues before a neutral third party. Not only could contractors be unfairly excluded from contracts, but the Rule will allow unions and plaintiffs’ lawyers who represent or seek to represent employees of contractors to use the threat of pursuing such incomplete findings of labor law violations as a weapon with which to demand concessions or settlements from contractors. Using these “violations” to determine whether a contractor is eligible to bid on a contract is not only a violation of due process, but it can be argued that forcing contractors to report such “non-violations” as violations is a violation of the First Amendment.
NASCO teamed with the Associated Buliders and Contractors (ABC) and working with the premier leading employment law firm Littler Mendelsohn filed a motion to enjoin the Rule from going into effect. In October, a U.S. District Court in granted the motion for a Temporary Restraining Order and Preliminary Injunction, the day before the Rule was to go into effect. It was a huge victory for the entire federal contracting community and NASCO’s leading effort was hailed by employer and contracting groups. With a GOP administration elected in November, and a GOP Congress, it is likely the Rule, even though it would have likely died in the Courts, will be eliminated via the Congressional Review Act.
NASCO also continued to be involved in federal and national security issues in Washington through its memberships and participation on the DHS Emergency Service Sector Coordinating Council and the U.S. Chamber National Security Task Force.
Of course, a lot of the federal, and state activity, of interest to contract security companies has nothing to do with security, licensing or government contracting, and once again, this past year NASCO kept its members abreast of a dizzying array of labor and employment developments. At the state level, numerous minimum wage, paid sick leave, and ban the box bills and ordinances were passed this year, and at the federal level, the EEOC, NLRB and other federal agencies continued to go full tilt to cement President Obama’s labor legacy.
With most of these state and federal labor related activities there is nothing that can be done to stop them; however, NASCO seeks to provide its members with as much advance warning, information and useful analysis as possible. As mentioned, NASCO works with top employment firms, the U.S. Chamber, and subscribes to various labor and employment law monitoring and analysis services to provide its member with useful information.
One way that NASCO members are able to obtain and share information on the employment and labor issues is through the NASCO “Legal Forum” in which NASCO member company counsel, executives, and outside counsels meet to discuss and share advice on legal and litigation issues affecting contract security companies. Besides the formal meetings, NASCO counsels and executives regularly share information and provided updates on various legal, litigation, regulatory and compliance issues.
NASCO also continued to be involved in important litigation affecting the industry. NASCO, again was involved in 2016 in amicus efforts in two California wage and hour class action cases, Lubin v. Wackenhut and Augustus v. ABM, both involving contract security companies.
NASCO also held two premier industry conferences this year with its February CEO Roundtable in Fort Lauderdale and its June Summit in Washington, as well as the NASCO Breakfast at the ASIS Seminar in September. These events featured presentations and much discussion on numerous topics involving members of Congress, federal officials from the FBI and other agencies, U.S. Chamber legal experts, contract industry analysts and specialists, employment lawyers, airport officials and associations, insider threat experts, congressional staff, and others.
A busy and productive year indeed!