Last month, we outlined Congress’ plan to block the implementation of President Obama’s Fair Play and Safe Workplaces executive order. Today, we report that the prognosis has grown even more grim for the former President’s initiative, as both the House of Representatives and Senate have passed measures blocking the order from taking effect – now, the only remaining hurdle to a full repeal of the Fair Play and Safe Workplaces order is the signature of the President. 

To briefly summarize the saga up to this point, the Fair Play and Safe Workplaces order was signed in 2014 by President Obama. It articulated three new requirements on federal contractors:

  • Report labor law “violations” of itself or any of its subcontractors (where the estimated value of the subcontract exceeds $500,000) under various federal employment and labor laws. This provision became known as the “blackball” rule, for its potential to prevent contractors from receiving new contract awards;
  • Restrict the use of binding, pre-dispute arbitration provisions in employment contracts that have not been subject to collective bargaining; and
  • Establish “paycheck transparency” through the issuance of wage statements to all individuals performing work under a covered contract.

In October of 2016, a federal judge issued an injunction against the implementation of the order, preventing the blackball rule and the restriction on arbitration provisions from going into effect (the paycheck transparency provisions were allowed to continue).

Last month, amid changing political winds in the country and an increasing emphasis on deregulation, the House of Representatives voted to block the executive order in its entirety. On March 6, 2017 the Senate voted to advance the repeal of Fair Play and Safe Workplaces to the President’s desk for signature.

If the President signs the legislation, as he is widely expected to do in the near future, all three of the new requirements promulgated under the order will be officially rescinded.

We will continue to post on this topic as the situation evolves, but for now it is important for federal contractors to continue to abide by the law as it currently stands, but to keep the repeal of Fair Play and Safe Workplaces in mind. We also encourage federal contractors to remain vigilant when reviewing federal contracts to ensure that agencies do not include clauses and provisions that have been rescinded as a matter of law, which appears the likely fate of Fair Play and Workplaces.

Edward T. DeLisle is Co-Chair of the Federal Contracting Group. Ed frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues and dispute resolution.

Carl J. Vernetti is an Associate in the Federal Contracting Group and focuses his practice on federal procurement issues. He has broad experience with matters concerning prime and subcontractors looking to do business with the government.