As we previously reported, following the start of the Trump Administration, Congress has moved aggressively to overturn regulations passed in the final days of the Obama Administration through the rarely-used powers in the Congressional Review Act (CRA). This focus on CRA actions, which is in keeping with the Trump Administration’s broader goal of eliminating costly regulations, has taken time and attention in the early days of the 115th Congress because the CRA gives Congress a limited amount of time to reverse regulations. One of the rules that has been targeted for elimination is the Fair Pay & Safe Workplaces rule, a rule subject to much debate and controversy since its enactment in August 2016. Recent Senate action makes it likely that the rule, which would have imposed billions of dollars in costs on taxpayers over the next decade, will be eliminated next week.
Issued on August 25, 2016, the Fair Pay & Safe Workplaces rule has been one of the most controversial rules enacted by the Federal Acquisition Regulatory Council under President Obama. According to the rule and concurrent guidance issued by the Department of Labor, federal contractors and subcontractors would have had an obligation to publicly disclose any violation or alleged violations of labor laws – regardless of whether they had been adjudicated – when bidding on federal contracts worth more than $500,000.
Despite its name, contractors and commentators took the position that there is nothing “fair” in the rule, which would potentially penalize contractors without formal due process for these labor law accusations. In part because of the due process concerns, among other constitutional infirmities, the most onerous provisions of the rule were enjoined by a district court last year shortly before they were to take affect.
On March 2, the Senate voted on a bill that would entirely overturn the rule. The bill is set for a final vote this Monday, March 6, before it is presented to the President to be signed into law. Unlikely to face much opposition, this bill would permanently repeal the provisions of the Fair Pay & Safe Workplaces regulation. The pending Senate action follows passage of a corresponding bill by the House of Representatives on February 2, 2017.
While it is common for a new administration to reverse rules enacted through Executive Orders, involving Congress in the repeal is unusual. President Trump could reverse and nullify the effects of the regulation through his own Executive Order, essentially with the stroke of a pen. Instead, Congress chose to take formal action to reverse the regulation – already enjoined from enforcement by a district court judge. Importantly, unlike an Executive Order, if the CRA joint resolution passes the Senate and is signed by the President, it will preclude the Federal Acquisition Regulatory Council from promulgating a similar rule in the future without specific Congressional authorization.
Following Monday’s vote and Trump’s expected signature, the Fair Pay & Safe Workplaces rule is almost certainly gone for good.