President Trump has signed a resolution voiding an Obama-era regulation that would have required federal contractors to disclose employment law violations to agencies that award contracts. His signature was the final step in the repeal process; “It was the stake through the heart of the blacklisting regs,” according to H. Juanita Beecher, of counsel with Fortney & Scott and an editor of Federal Employment Law Insider.
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The move is a welcome one for federal contractors, as they expected the so-called blacklisting rule to be incredibly burdensome, Beecher told BLR®. The rule was issued to implement President Obama’s Fair Pay and Safe Workplaces Executive Order, which also directed agencies to consider those disclosures when awarding contracts.
The Obama administration said the requirements were necessary to ensure that employers that illegally cut corners at employees’ expense didn’t benefit from taxpayer-funded contracts. Republicans, however, have called the rule flawed and unnecessary.
The regulation was scheduled to take effect October 25, 2016, but a federal district court temporarily halted certain provisions the evening before (Associated Builders and Contractors of Southeast Texas, et al. v. Rung, No. 1:16-cv-00425 (E.D. Texas, Oct. 24, 2016)). The judge took issue with the reporting requirements, especially because 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.
The judge left intact, however, the rule’s paycheck transparency requirement, which took effect in January. That part required federal contractors to provide wage statements detailing employees’ hours worked, overtime hours, pay, and any additions made to or deductions made from pay. It also required these companies to inform an individual in writing if he or she was being treated as an independent contractor rather than an employee.
Shortly after Trump’s inauguration, the House passed a resolution (H.J. Res. 37) to permanently reverse the regulations, including the paycheck transparency requirements. The Congressional Review Act (CRA) allows Congress to undo rules this way—in the 60 days after they are issued—leaving an outgoing administration’s final actions vulnerable.
Before Trump, the law was only used successfully once before, to void Occupational Safety and Health Administration ergonomics rules issued during the final days of the Clinton administration. Trump has now used it seven times, according to various media reports.
The Senate adopted the resolution and Trump signed it March 27, as expected. The only surprise was that Trump didn’t kill the rule sooner via Executive Order, Beecher said. But that would have left the door open for a future president to bring back Obama’s order, she noted; by going about it this way, he ensured that it would very difficult to do this again. When Congress uses the CRA to void a regulation, it prevents the agency from issuing the same or similar rules until Congress passes a new law permitting it to do so.
“It eliminated the whole thing,” Beecher said; “basically, it’s gone forever.”
 Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies. |
He’s doing what he said he would do. I’d love to hear from anyone about other presidents who have done as much as far into it as he is, and/or in their entire terms.