President Obama and his EO’s
Remember the Blacklisting Order that required federal contractors to provide a rap sheet with a proposal? No? Well, President Obama issued 275 Executive Orders during his two terms on various subject matters, some of which were fairly controversial, the Blacklisting Order included. Back in 2014, he issued several high-profile executive orders focused on employment issues in particular. For example, executive orders were issued for federal contractors regarding minimum wage, affirmative action, disclosure of compensation information, and similar issues. So what happens to those EOs now? Although we can’t predict the future, we can tell you that the Blacklisting Order is gone for now.
Some Background: Fair Pay and Safe Workplaces Executive Order 13673
Executive Order 13673 (issued on July 31, 2014) was called the “Fair Pay and Safe Workplaces” order, and it required federal contractors and subcontractors to report any “administrative merits determination arbitral award or decision, or civil judgment” against them in the preceding three years that related to potential violations under the FLSA, NLRA, OSHA, FMLA, and other anti-discrimination laws. It was known as the “blacklisting” order because it required the federal contracting officer to consider such violations when awarding or extending government contracts. The order also barred contractors from imposing predispute arbitration agreements on their employees.
Successful Challenge to the Order: The FAR Rule and the Injunction
On August 24, 2016, the Federal Acquisition Regulatory Council and the Department of Labor published a final rule implementing the Fair Pay and Safe Workplaces Executive Order. The final rule required federal prime contractors and subcontractors, including federal construction contractors with contracts over $500,000, to disclose to the government labor violations occurring within an expanding lookback period. Among the labor laws listed were the Davis-Bacon Act, the Service Contract Act, the FLSA, OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the NLRA. The final rule, which was more than 500 pages, contained an effective date of October 25, 2016.
On October 7, 2016, the Associated Builders and Contractors (ABC) filed a lawsuit in the Eastern District of Texas to have the order and final rule declared unlawful and set aside. The ABC complaint stated that “[t]he Executive Order, FAR Rule, and DOL Guidance are unprecedented in their exercise of authority over matters previously controlled by Congress.” ABC further sought to have the regulation immediately enjoined. On October 24, 2016, the Texas federal judge granted ABC’s motion for a preliminary injunction against the reporting obligations in the new rule. The court also enjoined the restriction on arbitration agreements.
Enter the CRA and President Trump
Using a law passed in 1996 called the Congressional Review Act (CRA), in 2017 Congress immediately began reviewing regulations issued in the final months of the Obama administration. The CRA gives Congress an expedited process to revoke administrative regulations issued by the executive branch which it believes infringed when believed the regulations infringed upon the role of Congress. Although used only a few times since its passage, Congress has already invoked the CRA seven times this year. All of these actions have been signed into law by President Trump.
This week, on March 27, President Trump signed CRA legislation to repeal the Fair Play and Safe Workplaces regulations issued last August. Under the CRA, the House passed a resolution on February 2 to revoke the rule, and the Senate followed suit on March 6. With President Trump’s signature this week, the blacklisting rule finally and officially is blacklisted. In signing the CRA bill, the Trump administration commented that the blacklisting rule had been seen as one of the most significant threats to growing American businesses and hiring more American workers. We suspect that there will be more blacklisting of President Obama-era regulations in the days to come.