Public Contract Law Journal

History Repeating: Deja vu of Failed Labor Law Regulations in Government Contracting

by Danielle Bereznay

Danielle Bereznay (dbereznay@law.gwu.edu) is a J.D. candidate at The George Washington University Law School and is a Notes Editor for the Public Contract Law Journal. She wishes to thank Professor Bryan Byrd and Judge Jeri Somers for their insight and feedback throughout the Note writing process.

I. Introduction

In 2014, President Obama issued Executive Order 13673, known as “Fair Pay and Safe Workplaces” (“FPSW”).1 The purpose of FPSW was to ensure that federal contractors provide “safe, healthy, fair, and effective workplaces”2 by complying with fourteen federal labor laws and the state equivalents.3 FPSW sought to weed out bad actors not complying with labor laws by publicizing labor law violations that occurred in the preceding three years and requiring that contractors engage in a new reporting process of violations.4

The contracting community, practitioners, and courts heavily criticized President Obama’s FPSW. Met with criticism from the contracting community, the final rule implementing the Executive Order received a substantial number of public comments.5 Federal contractors at both small businesses and large corporations contested the bureaucratic expansion of the reporting process.6 Conversely, unions were pleased with the provisions of FPSW because it protected the interests of workers and cracked down on labor law violations.7 The oversight provided by FPSW ensured that workers would be protected from “wage theft, safety violations[,] and discrimination.”8

However, just like the labor law regulations promulgated in the early 1990s, FPSW did not survive initial judicial scrutiny.9 On October 24, 2016, the day before expected implementation, a Texas judge enjoined FPSW.10 With the exception of one provision, the court issued a preliminary injunction barring implementation of FPSW.11 The injunction changed the course of action for contractors preparing to overhaul existing procedures.12 As evidenced by the court’s focus in the opinion, the reporting requirements were at the heart of the controversy.13

In addition to the injunction, the changing political climate altered the course of direction for FPSW.14 President Trump faced several options regarding the previous administration’s Executive Orders: he could rescind all of President Obama’s Executive Orders at the same time or elect to go through each Executive Order individually — deciding which orders could be revised and which should be repealed.15 President Trump, in deciding to do the latter, elected to permanently repeal FPSW.16 On January 30, 2017, Republican lawmakers issued a joint resolution of disapproval, which blocked FPSW under the Congressional Review Act.17 The joint resolution was a permanent rollback of FPSW, indicating to the public that lawmakers drastically disapproved of FPSW and its goals.18 Additionally, President Trump signed an Executive Order revoking President Obama’s initial Executive Order setting forth FPSW.19

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