Seyfarth Synopsis: Today, President Trump signed the joint resolution of disapproval rescinding the resolutions issued pursuant to President Obama’s Executive Order 13678, entitled “Fair Pay and Safe Workplaces” but popularly referred to as the “Blacklisting” Order. Under the Congressional Review Act, once a resolution is rescinded, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.
Today, March 27, 2017, President Trump signed the resolution of disapproval passed by both Houses of Congress, disapproving the regulations issued pursuant to President Obama’s Executive Order 13678, entitled “Fair Pay and Safe Workplaces” but more popularly referred to as the “Blacklisting” Order. The resolution of disapproval was made pursuant to the Congressional Review Act (CRA), which permits Congress to pass legislation rescinding a particular regulation under certain restrictions.
Now that President Trump has signed the rescission resolution, the “Blacklisting Order” will not have any implementation requirements. The rescission resolution, while initiated by Congress, is in line with the Trump Administration’s stated goal of rolling back many Obama-era federal regulations. It also has the effect of rescinding the paycheck transparency provisions requiring contractors to provide regular statements disclosing wages and benefits to employees, which were left in place by Judge Marcia Crone’s nationwide preliminary injunction blocking the other elements of the “Blacklisting Order’s” implementing regulations.
Now that the “Blacklisting” Order’s implementing regulations have now been completely rescinded pursuant to the CRA, the Executive Branch is prohibited from reissuing the same regulations, or promulgating similar ones, without Congressional approval. The Executive Order itself remains in effect until the President issues his own Executive Order rescinding it, but without any implementing regulations it lacks enforcement mechanisms and is rendered ineffective.
The “Blacklisting” Order was criticized by the employer community and employer associations because of the additional financial burdens it imposed on covered contractors, the risk to reputation and business from public disclosure of alleged violations before they are proven, and the fact that agencies already had enforcement mechanisms in place to ensure contractor compliance. The Congressional action under the CRA removed these supplementary requirements for federal contractors and the additional responsibilities given to the contracting agencies and the Department of Labor.