On March 27, 2017, President Trump took two coordinated actions to permanently eliminate the Fair Pay and Safe Workplaces (“FPSW”) regulations promulgated last summer and the underlying Executive Orders.
First, the President signed H.J.Res. 37 into law. H.J.Res 37 is a joint resolution of Congress disapproving the FPSW regulations and deeming such regulations to “have no force or effect.” The joint resolution of disapproval was enacted pursuant to the Congressional Review Act (“CRA”). The CRA states that a rule rescinded pursuant to that statute “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” 5 U.S.C. § 801(b)(2). While portions of the FPSW regulations had been previously enjoined by a federal judge in October 2016 pending litigation, the entire FPSW regulation is now rescinded – effectively mooting the legal challenges to the regulations.
Second, the President issued an Executive Order entitled “Revocation of Federal Contracting Executive Orders.” This new Executive Order expressly revokes Executive Orders 13673 and 13738 in their entirety as well as those parts of Executive Order 13683 that provided additional legal support for the FPSW regulations and accompanying Department of Labor guidance. Through this action, the underlying legal foundation for FPSW was rescinded.
Based on these two actions, the entirety of the FPSW regulatory scheme has been rescinded. The blacklisting rules have been nullified, as well as the Paycheck Transparency and Arbitration requirements. And, absent Congressional action, these rules can never be reinstated. A good day for federal contractors.