Blacklisting rule is gone for good

As expected, President Trump signed a resolution from Congress (H.J. Res. 37) that overturns the U.S. Department of Labor (DOL)’s rules implementing Executive Order 13673, “Fair Pay and Safe Workplaces,” also known as the federal contractor “blacklisting” order.

As a result, the rule cannot be enforced. Also, federal agencies are prohibited from ever issuing a substantially similar rule unless Congress specifically authorizes them to do so. This means that it is highly unlikely to ever reappear.

President Trump also issued Executive Order 13782 which cleaned up the books by revoking Executive Order 13673 and its amendments. If he had simply issued his own executive order without approving the Congressional resolution, it would have been easy for a future administration to revive the blacklisting rules.

The original Executive Order issued by President Obama had three main components:

(1) a requirement for covered federal contractors to self-report adverse labor law decisions (the “blacklisting” part of the order);

(2) a prohibition on pre-dispute arbitration agreements with individual workers covering claims arising under Title VII or any tort related to or arising out of sexual assault or harassment; and

(3) a paycheck transparency requirement for certain disclosures on employee pay stubs and a special notice of employment status to individuals who are designated as independent contractors.

Tips for Employers: The first two portions of the order were temporarily blocked by a federal court in October 2016, before they took effect. The third portion (paycheck transparency) applied to covered federal contracts and subcontracts that were issued on or after January 1, 2017. If you signed a contract on or after January 1, 2017, with these paycheck transparency requirements, talk with your general business counsel about negotiating to remove that provision or otherwise confirm the parties’ mutual understanding that it isn’t enforceable.

If you have any questions about other Department of Labor rules for federal contractors, or how the revocation of the blacklisting order affects you as an employer, you are encouraged to speak with your Vigilant employment attorney for counsel. We can help shed light on any DOL rules that may be unclear, as well as discuss any compliance concerns that you may have.