The Congressional Progressive Caucus has encouraged the U.S. Department of Labor (DOL) to move forward with its “blacklisting” plan for federal contractors, despite a court’s injunction temporarily halting implementing regulations.
Among other things, the regulations would have: (1) required contractors to report employment law violations to agencies that award contracts and (2) required the agencies to consider these violations when choosing contractors.
The Federal Acquisition Regulatory (FAR) Council’s rules and a DOL guidance were scheduled to take effect in several phases beginning October 25. The evening before, however, a federal district court judge granted a request to halt the rules—except for a paycheck transparency provision—until they could be considered on the merits.
The judge called into question not only DOL’s authority to issue the regulations but also the executive order that delegated disqualification responsibilities to contracting agencies in the first place. “[T]he public disclosure and disqualification requirements being imposed on federal contractors and subcontractors are nowhere found in or authorized by the statute on which the Executive Order [EO], FAR rule, and DOL Guidance relies,” Judge Marcia A. Crone wrote.
Moreover, none of the laws involved (like the Fair Labor Standards Act, Title VII, and the Americans with Disabilities Act) provide for debarment or disqualification of contractors for violations of their provisions, she said.
Also, in delegating disqualification responsibilities to contracting agencies, “the Executive Branch appears to have departed from Congress’s explicit instructions dictating how violations of the labor law statutes are to be addressed,” Crone added.
In light of the injunction, FAR said in a memo that agencies should refrain from implementing the rules’ requirements (except for the paycheck provision) until further notice.
The largest caucus within the House Democratic Caucus, however, said that the legal principle on which the EO was based still stands. DOL “has full authority to hold contractors accountable under current law, regardless of this injunction,” the organization’s cochairs, Rep. Raúl M. Grijalva (D-AZ) and Rep. Keith Ellison (D-MN), said in a press release. “We urge the Department of Labor to uphold business integrity by denying contracts to labor standard violators.”
When asked whether the department would implement its plan anyway, a spokesperson told BLR that DOL is confident that both the rule and the guidance are legally sound and that “the Department of Justice is considering options for next steps.”