Government Contracts Monitor

Fair Pay and Safe Workplaces Regulations Nullified and Underlying Executive Order 13673 Revoked

March 28, 2017

On Monday, March 27, 2017, President Trump signed House Joint Resolution 37, repealing and nullifying the Fair Pay and Safe Workplaces final rule issued last August, implementing President Obama’s Executive Order 13673 (Fair Pay and Safe Workplaces). As previously discussed here, this Resolution was passed by both Houses of Congress under the Congressional Review Act, 5 U.S.C. § 801 et seq. (CRA), which means that no new similar future rule may be issued “in substantially the same form,” unless explicitly authorized by Congress.

In addition, President Trump signed a new Executive Order, explicitly revoking E.O. 13673, as well as Section 3 of Executive Order 13683, issued December 11, 2014, and Executive Order 13738, issued August 23, 2016, which amended Executive Order 13673. Section 2 of President Trump’s new Executive Order explicitly directs all executive departments and agencies to consider promptly rescinding “any orders, rules, regulations, guidance, guidelines, or policies implementing or enforcing the revoked Executive Orders.” This direction presumably encompasses the Department of Labor’s published Guidelines interpreting various terms in the Executive Order.

These Presidential actions close the books on this controversial rule and its so-called “blacklisting” provisions, and avoid the associated heavy burdens and substantial compliance challenges for contractors had such provisions taken effect. As previously advised, the U.S. District Court for the Eastern District of Texas enjoined implementation of most of the rule late last October, just before the rule was scheduled to become effective. That injunction decision has been on appeal, but such appeal presumably will now be withdrawn and the case dismissed as moot. However, the Court did not stay the Paycheck Transparency rules, and those rules became effective on January 1, 2017, for new solicitations issued after that date for contracts valued at over $500,000, as previously discussed here. Those rules have now been nullified, and presumably will be withdrawn shortly.

In the interim, and on a practical level, if you are responding to a new solicitation incorporating Paycheck Transparency, you may want to ask the Contracting Officer to amend the solicitation to delete such provisions now that the rule has been nullified. Similarly, if you are operating under a contract that has been modified to incorporate, or that otherwise includes, Paycheck Transparency, you may want to ask the Contracting Officer to modify the contract to remove those requirements. This repeal does not alleviate your obligations to comply with any applicable comparable state or local pay notification requirements in the various jurisdictions in which you are operating..