On March 27, 2017, President Trump took two actions to roll back a controversial Obama-era requirement for government contractors.
First, the President signed an Executive Order revoking President Obama’s Fair Pay and Safe Workplaces Executive Order (Executive Order 13673, as amended by Executive Orders 13673 and 13738). This controversial executive order had required, among other things, federal contractors to (1) disclose prior violations of federal and state employment and labor laws in solicitations for certain government contracts and every six months during the existence of the contract (the “blacklisting” order) and (2) provide certain pay-related information to employees and independent contractors (the “paycheck transparency” order).
In conjunction with that Executive Order, the President also signed into law H.J. Resolution 37. This measure—authorized by the rarely used Congressional Review Act, which allows Congress to review and overrule a regulation adopted by a government agency within the last 60 legislative days (in this case dating back to May 2016), prohibiting the agency from issuing in the future a rule that is substantially the same—overruled the final agency regulations designed to implement the Fair Pay and Safe Workplaces Executive Order. A federal judge already had issued a temporary restraining order last fall, blocking implementation of the blacklisting portion of the order, but allowing the paycheck transparency rules to take effect. This resolution now negates the entire set of regulations and bars the government from adopting substantially the same regulations again in the future, unless expressly authorized by an act of Congress.
This action marks President Trump’s first official foray into the regulation of government contractors since taking office in January. He previously avowed to keep in place Obama-era regulations that extended protections based on gender identity and sexual orientation, and those regulations were not changed by his March 27 actions. But it remains to be seen how extensively his administration will move to rescind or rewrite other Obama-Era orders and regulations, such as the new payroll-data-reporting requirements set to take effect for all EEO-1 filers this fall. Chances are, this is just the beginning!
Government contractors—certain entities that have contracts or subcontracts to provide goods or services to the federal government—agree to adhere to detailed affirmative action and other obligations as a condition of receiving federal funds. Foulston Siefkin is ready to help answer questions about your company’s status or obligations as a government contractor.