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Last-Minute Order Delays Contractor Rule

Wednesday, October 26, 2016

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A federal judge in Texas has issued a last-minute preliminary injunction against the U.S. Department of Labor’s Fair Pay and Safe Workplaces Rule, which was scheduled to go into partial effect Tuesday (Oct. 25).

The rule—referred to by critics as the “blacklisting” rule—requires prospective federal contractors bidding on projects over $500,000 to disclose labor law violations in the last three years. It stems from an executive order signed by President Barack Obama on July 31, 2014.


The controversial rule stems from an executive order signed by President Barack Obama on July 31, 2014.

Several groups, including the Associated Builders and Contractors, have fervently opposed the rule, bringing a legal challenge Oct. 7 in the U.S. District Court for the Eastern District of Texas.

Order Blocks Rule

Judge Marcia A. Crone issued the preliminary injunction in the case Monday (Oct. 24) evening, noting that the groups had “properly demonstrated immediate and ongoing injury to their members if the rule is allowed to take effect,” Politico reports.

She also wrote that the regulations “appear in conflict directly with every one of the labor laws they purport to invoke by permitting disqualification solely upon ‘administrative merits determinations’ that are nothing more than allegations of fault asserted by agency employees and do not constitute final agency findings of any violations at all.”

Further, Crone wrote that the group’s argument that the executive order and subsequent rule from the Federal Acquisition Regulatory Council violate the First Amendment has merit because they require contractors to publicly disclose violations of any of the 14 federal labor laws “without regard to whether such violations have been finally adjudicated after a hearing or settled without a hearing, or even occurred at all.”

Ruling Applauded

In a statement applauding the ruling, ABC Vice President of Regulatory, Labor & State Affairs Ben Brubeck said, “Associated Builders and Contractors is pleased the court ruled that the Obama administration cannot order private businesses to publicly disclose mere accusations of labor law violations that have not been fully adjudicated.”

“By issuing this decision, the court has maintained the First Amendment rights of government contractors and protected them and taxpayers from the poorly crafted blacklisting rule.”

'A Broken System'

Roughly 24,000 businesses, employing 28 million workers, have federal contracts.

“Cheaters shouldn't win,” U.S. Secretary of Labor Thomas E. Perez said when the executive order was first announced. “This action ensures they won't.”

According to Perez, companies with a history of labor-law violations continue to receive lucrative federal contracts. A study released in 2013 found that almost 30 percent of the top violators of federal wage and safety laws were also current federal contractors.

Proponents say the order and subsequent rule are attempts to “fix a broken system.”

For additional information on the Fair Pay and Safe Workplaces Rule and its scheduled rollout, click here.


Tagged categories: Associated Builders and Contractors; Contractors; Department of Labor; Government; Government contracts; Regulations; Violations; Workers

Comment from M. Halliwell, (10/26/2016, 11:38 AM)

I get the whole "guilty until proven innocent" aspect of the challenge....but the contractors need to step up here too. If they are cited / charged, they need to step up and get it resolved....not do the hearing game, then the arbitration game, then the court came to drag out finalization for months and years. On the flip side, I think the proposed rule needs to loosen off a bit...separate out the convictions vs. charges and not immediately preclude a contractor based on the latter unless there is a significant pattern of issues. If a contractor is charged that's fine, nobody is perfect. If a contractor has 5 or 10 open investigations/citations/charges for the same thing(s) over the last few years, it shows something is systemically wrong in the company's safety program and would give me pause on hiring them unless they can provide a reasonable explanation. I don't see why the Feds should be excluded from having that option too.

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