Earlier this month, the House approved a measure to stop implementation of Obama’s 2014 “Fair Pay and Safe Workplaces” order, which was designed to ensure that contractors “understand and comply with labor laws.” Senate action is expected soon. The order had been stalled, if not killed by, a federal court ruling in Texas.
If repeal efforts are successful, it would be “the start of what we fear will be a sustained assault on America’s working families,” Christine Owens, executive director of the National Employment Law Project, said in a statement.
Under the executive order, contractors would be required to report workplace violations for the previous three years. Agency contracting officers then would use that information to determine if the business “is a responsible source that has a satisfactory record of integrity and business ethics.”
In other words, a firm’s prior violations of fair-pay and safe workplace standards could be used to prevent that company from getting future contracts, among other options.
Sounds reasonable enough. But contractor organizations have hyperbolically demeaned the order as “blacklisting,” though it does not require barring companies from government work.
In a Feb. 1 letter to Congress, 19 organizations criticized the executive order as “Obama administration’s costly and flawed ‘blacklisting’ regulation [that] circumvents congressional authority, harms the economy and efficiency of the federal acquisition system and disrupts fair and open competition in federal contracting.”
The next day, the House followed business lobby recommendations and voted to block Obama’s order.
One of the organizations was the Professional Services Council (PSC), which represents technology and professional service companies. “This blacklisting rule fails to provide companies with basic due process, imposes significant new and non-value added reporting requirements, and risks denying federal buyers access to the best private-sector providers to meet government needs,” PSC President and CEO David Berteau said in a statement. “With the disapproval of this rule by the House, and we hope with prompt action by the Senate and then signature by the President, a significant overhang will be removed from the acquisition process.”
The legislative moves employ the Congressional Review Act, which was little used until President Trump took office. It allows Congress to participate in administrative deconstruction by killing regulations with expedited procedures. “As a result, hundreds of health, safety, pocketbook and environmental protections are in danger of being repealed, and we won’t be able to get them back any time soon,” said Rules At Risk, a coalition of progressive groups that says regulatory protection “secures our quality of life.”
Congressional action against the fair-pay executive order would be an early and blunt blow demonstrating that “big business and its lobbyists — and not the interests of workers — will drive the administration’s agenda,” said Owens.
Obama’s order “was designed to protect workers and safeguard taxpayer dollars,” she added. “The idea was that before federal agencies award contracts of more than $500,000 to a contractor, they should check whether the company has complied with labor laws. The rule simply required that contractors disclose any violations of worker protection laws — the same way they have to disclose violations of other laws when bidding for a contract.”
The fair-pay executive order is one of several actions Obama took to improve workplace conditions. Among others:
- Executive Order 13494, Jan. 30, 2009, disallowing “certain costs that are not directly related to the contractors’ provision of goods and services.”
- Executive Order 13495, Jan. 30, 2009, protecting the employment of contract employees when a “follow-on contract” succeeds one that expired.
- Executive Order 13502, Feb. 6, 2009, encouraging executive agencies to consider “project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.”
- Executive Order 13627, Sept. 25, 2012, “strengthening protections against trafficking in persons in federal contracts.”
- Executive Order 13658, Feb. 12, 2014, establishing a $10.10 hourly minimum wage for contractors and allowing for annual increases.
- Executive Order 13665, April 8, 2014, prohibiting retaliation against any contract employee or applicant who “has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.”
- Executive Order 13672, July 21, 2014, “prohibiting discrimination based on sexual orientation and gender identity.”
- Executive Order 13693, March 19, 2015, “to maintain Federal leadership in sustainability and greenhouse gas emission reductions.”
- Executive Order 13706, Sept. 7, 2015, “establishing paid sick leave for federal contractors.”
PSC did not oppose the executive orders on trafficking, minimum wage, and prohibiting sexual orientation and gender identity discrimination. “Our opposition to other executive orders such as on paid sick leave and greenhouse gas emission reductions was based on the methodology in the implementing regulations and the onerous and non-value added reporting requirements,” Alan Chvotkin, PSC’s executive vice president and counsel, said by email Monday. “There is no known timetable for any further White House action on the existing executive orders but many have been on our list for careful scrutiny and ‘retooling.’ ”
Chvotkin’s “retooling” complements Bannon’s “deconstruction.”
To Owens, it’s the “axing of worker protections.”
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