Federal Contractors Relieved From Compliance With Blacklisting Order

March 29, 2017 Labor & Employment Alert

On March 27, 2017, President Trump took another step to reverse his predecessor’s attempts to legislate through executive and administrative action by signing two measures that eliminated, for the foreseeable future, the obligations imposed on federal contractors by Executive Order 13673 – the “Fair Pay and Safe Workplaces” Order (“Blacklisting Order”) – and various agency regulations promulgated pursuant thereto. 

As discussed in our previous alert, in 2014, President Obama issued the Blacklisting Order, which applied to prospective federal contractors who entered into procurement contracts in excess of $500,000. The Blacklisting Order prescribed onerous requirements including disclosure of labor law determinations, “paycheck transparency” mandates and proscribed mandatory pre-dispute arbitration agreements concerning certain discrimination claims. On October 24, 2016, a federal district court judge issued a nationwide preliminary injunction barring the enforcement of the disclosure and arbitration provisions. Before that litigation could proceed further, however, President Trump signed two measures that, in combination, effectively nullify all aspects of the Blacklisting Order. 

First, the President signed H.J. 37, a joint resolution of Congress disapproving and invalidating agency rules submitted pursuant to the Blacklisting Order. The resolution was enacted pursuant to the Congressional Review Act, 5 U.S.C. § 801, which means that agencies are now prohibited from issuing or reissuing substantially similar rules unless authorized by statute.  Second, the President revoked the Blacklisting Order through a new Executive Order, titled “Presidential Executive Order on the Revocation of Federal Contracting Executive Orders.” Because the Blacklisting Order provided the sole legal basis for the Department of Labor’s guidance on the paycheck transparency provision – the only provision of the Blacklisting Order that the court had not enjoined – the new Order moots the guidance. Accordingly, federal contractors are relieved of all obligations established by the Blacklisting Order. 

For more information about this alert or any other affirmative action issues, please contact Kenneth A. Rosenberg at [email protected] or 973-994-7510 or Justin Schwam at [email protected] or 973-994-3313.