President Trump Revokes President Obama's "Blacklisting" Executive Order

On March 27, 2017, President Trump signed legislation, under the Congressional Review Act, blocking regulations and guidance governing Executive Order 13673, "Fair Pay and Safe Workplace," commonly called the "Blacklisting" Executive Order. The regulations and guidance, which detail how the Department of Labor and other administrative agencies are to enforce the Order, are no longer effective.

President Obama issued Executive Order 13673, "Fair Pay and Safe Workplace," dubbed the "blacklisting" order, on July 31, 2014. On August 24, 2016, the Federal Acquisition Regulation (FAR) Council enacted regulations detailing how agencies were to implement the Executive Order and the Department of Labor (DOL) issued guidance on the Executive Order. The Executive Order, which applied to Federal contractors with new federal contracts valued at more than $500,000, required federal contractors and subcontractors:

• to report violations of 14 federal laws and certain unspecified state laws when bidding on service and supply contracts, including construction contracts;
• to provide their employees with pay stubs every pay day; and
• prohibited companies with federal contracts of one million dollars or more from requiring their employees to enter into pre-dispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act or from torts related to sexual assault or harassment.

The revocation of the FAR regulations and the DOL guidance means that federal contractors do not have to comply with the requirements of Executive Order 13673 until new regulations and guidance are issued. Under the Congressional Review Act, an agency "may not reissue the regulations 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). It is likely that the FAR Council and Department of Labor will have difficulty passing new rules to enforce Executive Order 13673.

For more information on this matter, please contact Thomas P. Brady at (313) 965-8291 | tbrady@clarkhill.com, Bret S. Wacker at (202) 772-0906 | bwacker@clarkhill.com, or another member of Clark Hill's Labor and Employment or Government and Public Affairs practice groups.