Contractor Blacklisting Rules Coming to a Permanent End

Less than six months ago, federal contractors were clutching their pearls over the prospect of having to publicly disclose violations under 14 federal workplace laws, to be eligible for a government contract. The following month, in October 2016, a federal judge iced those “blacklisting rules” with a nationwide injunction.

Now, it appears as though President Trump will put the permanent kibosh on Barack Obama’s Fair Pay and Safe Workplaces Executive Order.

On Monday, the US Senate narrowly (49-48) voted to kill an Obama administrative rule requiring companies bidding on federal contracts to report violations. The House approved the same measure in February. All that remains is for the legislation to be approved by the President.

In the hours leading up to the Senate vote, Massachusetts Senator Elizabeth Warren (D) issued this report, in which she touts that “66 of the federal government’s 100 largest contractors have been caught breaking federal wage and hour laws, and more than a third of the 100 largest penalties levied by the Occupational Safety and Health Administration (OSHA) since 2015 were issued to companies that held federal contracts.”

Then you have the U.S. Chamber of Commerce, a staunch opponent of the blacklisting rules, which has emphasized how the rules force federal contractors to disclose “mere allegations of federal labor violations, potentially locking them out of federal contracts without giving them a chance to challenge the charges.”

Indeed, as I’ve blogged before, under the “blacklisting rules,” a “violation” includes administrative merits determinations (e.g., a letter of determination from the EEOC that reasonable cause exists to believe that an unlawful employment practice has occurred or is occurring; a DOL letter indicating that an investigation disclosed a violation of the FLSA; or a complaint issued by any Regional Director of the NLRB), arbitration awards and civil judgments.

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While it’s not a slam dunk that President Trump will sign the resolution, consider that Barack Obama signed the Executive Order, Senator Warren is an ardent support of the rules, and the Senate voted along party lines to place the measure before President Trump.

So, yeah, maybe, it’s a slam dunk.

This article first appeared on The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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