Fair Pay & Safe Workplaces Rule is on the chopping block

Heidi Wilbur
Heidi Wilbur

In good news for federal contractors, Congress has taken its first step toward permanently blocking implementation of the Fair Pay & Safe Workplaces Rule, also known as the contractor “Blacklisting” Rule.  As we have discussed previously, the Rule (which includes regulations and guidance implementing President Obama’s Executive Order 13673) requires federal contractors bidding on contracts worth at least $500,000 to self-report “violations” of various labor and employment laws.

Because of the broad scope of the Rule’s reporting obligations, implementation of the Rule was expected to effectively blacklist contractors based on purported violations that had not been subject to judicial review or that were not final decisions. For example, an administrative agency could potentially use preliminary determinations -- such as a decision by a Regional Office of the National Labor Relations Board to issue a complaint, or a "cause" determination by the Equal Employment Opportunity Commission -- to block access to federal contracts, a scary prospect for any contractor. In October 2016, a federal judge in Texas issued an injunction that temporarily prevented significant portions of the Rule from going into effect.

With the Rule still on hold in the court system, Republicans in the House of Representatives are planning to use a little-known legislative tool to make the Blacklisting Rule disappear for good.

On Monday, Rep. Virginia Foxx (R-NC) introduced a joint resolution of disapproval under the Congressional Review Act. The CRA became law in 1996 and allows Congress a limited period of time in which to overrule a regulation through use of a joint resolution, essentially giving Congress a legislative veto.  To block implementation of the Rule, the joint resolution must be passed by both houses and either signed by the President or passed over the President’s veto by two-thirds of the House and Senate.

Lego execution.PublicDomain
Will Fair Pay & Safe Workplaces Rule meet its doom?

The CRA has been successfully used to invalidate a regulation only once -- in March 2001. Then, Congress and President George W. Bush disapproved a controversial regulation that required employers to take measures to prevent ergonomic injuries. (The regulation had been issued by the Occupational Safety and Health Administration in November 2000, in the eleventh hour of the Clinton Administration.)

Given that Republicans currently control both houses of Congress, and with President Trump in the White House, it seems likely that the joint resolution of disapproval of the Fair Pay and Safe Workplaces Rule will move forward. If the disapproval resolution is passed and signed by the President, the Rule will not take effect. But not only that -- in addition, federal agencies will not be able to issue a substantially similar rule without specific authorization from Congress.

Protections for LGBT Employees of Federal Contractors Will Continue

As noted on this blog yesterday, the White House has announced that President Trump will continue to enforce President Obama’s Executive Order banning sexual orientation and gender identity discrimination by federal contractors.

The Executive Order, signed in 2014, extended anti-discrimination protection to LGBT employees of federal contractors. According to the White House, the executive order “will remain intact” under the new administration, which presumably means that the Order will not be amended to add an exemption for religious organizations.

Photo of Lego "execution" in public domain.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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