Obama Fair Pay and ‘Volks’ rules no match for successor’s pen

President Donald Trump has signed House Joint Resolution 37, which rolls back his predecessor’s Fair Pay and Safe Workplaces Executive Order 13673 and relieves federal contractors and subcontractors of onerous paperwork and compliance terms attending what critics called the “blacklisting rule.”

“This rule made it too easy for trial lawyers to get rich by going after American companies and American workers who contract with the federal government,” said President Trump. He reflected on feedback from businesses for a White House gathering during which he signed H.J. Resolution 37 and three other bills nullifying burdensome orders President Barack Obama had applied to the Departments of Education and Interior. The resolutions were sent to the White House per the Congressional Review Act.

H.J. Resolution 37 blocks Fair Pay and Safe Workplaces implementation, which the Obama administration attempted through a Federal Acquisition Regulatory Council rule and Department of Labor guidance. Each subjected federal government contractors and subcontractors to new reporting and disclosure requirements surrounding 14 federal employment laws or provisions, plus arbitration agreement restrictions. The blacklisting label reflected the executive order’s barring from federal work those contractors or subcontractors that had violated, or allegedly violated, laws or rules under the Equal Employment Opportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, and other federal agencies.

President Trump’s H.J. Resolution 37 signing would appear to preclude further action on Fair Pay and Safe Workplaces, which was the subject of an October 2016 injunction by the U.S. District Court for the Eastern District of Texas, Beaumont. A plaintiff in the case challenging the executive order’s constitutionality, Associated Builders & Contractors, helped secure H.J. Resolution 37 passage in the 115th Congress, with House and Senate votes of 236-187 and 49-48.

“Associated Builders and Contractors commends Congress for taking action to free the contracting community and taxpayers from the disastrous effects of the Obama administration’s illegal blacklisting rule,” said ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “Since first proposed as an executive order, ABC has led the fight against this policy—which a U.S. District Court correctly ruled would violate federal contractors’ due process rights by treating non-adjudicated and often nefarious and frivolous per-adjudicated claims of violations the same as actual wrongdoing.

“By using the Congressional Review Act to nullify this rule, Congress has taken an important step in removing burdensome and duplicative reporting requirements and eliminating a costly barrier to entry that would have discouraged many small contractors from bidding on government contracts,” he added. “ABC looks forward to working with the Trump administration and Congress to improve the federal government’s existing suspension and debarment system, which already requires contractors to report violations, as well as to ensure contracts are bid through a process that encourages competition from all qualified contractors while protecting the American workforce and taxpayers’ investment.”


In Labor Department action separate from Fair Pay and Safe Workplaces, President Trump signed a Congressional Review Act-enabled resolution eliminating the Obama administration’s controversial “Volks” rule, formally known as Clarification of an Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness final rule.

“The Volks rule, finalized by the Occupational Safety and Health Administration under President Obama, imposed a massive paperwork burden on contractors without improving jobsite safety,” said ABC Vice President of Legislative and Political Affairs Kristen Swearingen. “Associated Builders and Contractors members value workplace safety and regulations based on sound evidence; however, OSHA’s rule directly contradicted the Occupational Safety and Health Act and U.S. Court of Appeals decisions. ABC looks forward to continuing to work with OSHA to develop standards that include real-world input from contractors and accomplish the agency’s important goal of improving jobsite safety without unduly burdening job creators.”

Under the OSH Act, contractors are still required by OSHA to maintain injury and illness logs for five years. The Volks rule-nullifying H.J. Resolution 83 does not change contractors’ responsibility to maintain injury and illness logs; however, it limits OSHA’s ability to retroactively cite contractors for past incidents to the six-month statute of limitations set by the OSH Act and multiple U.S. Court of Appeals decisions. ABC urged U.S. House of Representatives and Senate members to support the resolution, noting it would consider their vote key on the association’s 115th Congressional Scorecard.