Government Contractor Paycheck Transparency Rule Nullified by Congress

Fair Pay and Safe Workplaces Rule Stopped, President’s Signature Expected

            On Tuesday, March 6, 2017, by a party vote, 49-48, the Senate passed what is called a Congressional Review Act (CRA) Joint Resolution of Disapproval which will moot the burdensome compliance requirement and enforcement of President Obama’s Executive Order, EO 13673, “Fair Pay and Safe Workplaces” for federal government contractors. The US House had already passed a joint resolution, H.J. Resolution 37, on February 2, 2017.

            The Resolution revokes the Executive Order’s implementing regulations and the USDOL compliance and enforcement guidance. EO 13673, also called the “Contractor Blacklisting Rule,” required paycheck “stubs” that provided the rate of pay, the hours in each rate of pay, and a statement as to whether the employee was exempt or not exempt. Despite the well-established contract denial and blacklisting process in the existing government contract regulations, the EO established another blacklisting process with limited due process that required contractors to disclose to the contracting agency and to the public all noncompliance issues with 14 labor laws, including violations disclosed in self-audits, agency investigations, actual and threatened litigation, charges or claims of discrimination even those not proven, union organizing issues and violations, including unproven allegations challenged by the contractor.  A US District court had blocked the new blacklisting provisions while retaining the paycheck transparency provisions.

             If (when) signed by the president the CRA Joint Resolution of Disapproval:

• Directly disapproves and nullifies the USDOD, GSA and NASA FAR, Federal Acquisition Regulation, (Published in the Federal Register 81-58562) that implementing the EO effective August 25, 2016 to all government contracts.
• Prohibits the future re-issuance of a federal regulation that is the same or similar without authorization by Congress.
• Does not repeal the EO 13673, but renders it moot. Eventually, it is expected that President Trump will sign an Executive Order repealing and withdrawing the original EO 13673.

The Result for Contractors

            Pending the President’s signature, Federal government contractors are free from the burdensome compliance with the EO 13673, “Fair Pay and Safe Workplaces” and the implementing FAR. Since the President’s signature is expected by all, contractors can focus on more important matters.