On Monday, March 27, President Trump issued an Executive Order revoking President Obama’s Executive Order 13673, Fair Pay & Safe Workplaces, a/k/a “Blacklisting” Rule. The bulk of the Rule had already been enjoined by a Texas federal district court on October 24, 2016, just hours before it was slated to go into effect; however, the injunction did not affect the “paycheck transparency” requirements that went into effect January 1, 2017. President Trump also took care of that issue by instructing federal agencies to rescind any rules, regulations, or guidance implementing or enforcing EO 13673, and signed the Congressional Review Act resolution (H.J. Res. 37) invaliding the 2016 FAR provisions implementing EO 13673. The move was not unanticipated, following on the heels of a 49-48 Senate vote earlier this month in favor of H.J. Res. 37.
The federal contractor community is relieved by the move - among other things, EO 13673 would have required federal contractors to disclose “administrative merits determinations, arbitral awards or decisions, or civil judgments,” for 14 federal laws and their state equivalents when bidding on a new or renewed contract worth at least $500,000, along with “an opportunity to disclose” corrective actions, including but not limited to non-fault agreements entered into with enforcement agencies. Such disclosures would have to be updated every six months and contractors would also be required to collect such information from qualifying subcontractors.
The rule also would have restricted contractors’ ability to require the use of mandatory arbitration agreements for employees and independent contractors concerning Title VII claims and other torts/claims relating to sex discrimination and sexual harassment.
Even though the “paycheck transparency” portion of the rule has now been wiped out, contractors are reminded that they continue to have similar “transparency” obligations under the Service Contract Act, plus they remain subject to the “pay transparency” amendments to Executive Order 11246 (relating to affirmative action for minorities and females), that is, federal contractors and subcontractors may not fire or discriminate against employees for discussing, disclosing, or inquiring about their own pay or that of their co-workers. The rule also protects pay discussions by job applicants and requires a mandatory posting. And of course, the NLRB takes the same position with respect to all employers, not just federal contractors.
The business community expects Monday’s actions to be just one of several “housecleaning” measures Trump will take in the coming months. Some items on the wish list include roll back of enhanced OSHA recordkeeping rules, roll back of the rule that will require employers to file an “Equal Pay Report” providing summary data on compensation paid to employees by sex, race, ethnicity, specified job categories, and “other relevant data points,” and drastic adjustments to the Fair Labor Standards Act salary level regulations.
