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Fair Pay and Safe Workplaces Executive Order 13673 Limps Into 2017

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order 13673 ("EO"). EO 13673 requires federal contractors and subcontractors bidding on contracts and subcontracts in excess of $500,000 to disclose any violations they have incurred under 14 different federal workplace laws (and their state-law equivalents) in the three years preceding their bid. EO 13673, which has also been referred to as the "Blacklisting" EO, also prohibits arbitration agreements relating to claims of Title VII violations or sexual assault, and requires that certain pay information be given to employees and independent contractors. On August 25, 2016, the Rules implementing the EO were published. Prime contractors had a deadline of October 26, 2016 to comply with those requirements, while subcontractors are to comply starting on October 25, 2017.

However, two major developments have occurred since those Rules were published. First, on October 24, 2016, the federal district court for the Eastern District of Texas issued a preliminary injunction in favor of various industry groups who brought suit that blocks most of EO 13673's requirements. See Associated Builders and Contractors of Southeast Texas v. Rung, Civ. Act. Number 1:16-CV-425 (Oct. 24, 2016). Government contractors will not be subject to the EO and the Rules unless and until the preliminary injunction is lifted or reversed. In an interesting twist, the National Labor Relations Board ("NLRB") issued a Memorandum on November 7, 2016, stating that, while it "is not proceeding with sharing information with other Agencies in the manner contemplated by the Executive Order while the injunction [in the Rung case] is in effect," it would continue to request certain "blacklisting" information from employers if an NLRB Regional Director decides to issue a complaint based on an unfair labor practice charge.

Second, President Trump nominated Andrew Puzder to be the next Secretary of Labor. If his nomination is confirmed, Mr. Puzder will lead the U.S. Department of Labor, a Cabinet-level position with arguably the most significant impact on employers and employees nationwide. Mr. Puzder is the CEO of CKE Restaurants, the parent company of Carl's, Jr., Hardee's and Green Burrito fast food restaurant brands, and served as a senior policy advisor to the Trump campaign. To put it lightly, he is expected to promote management positions over those championed by labor and employee groups. As such, it remains to be seen whether Mr. Puzder and/or President Trump will seek to simply repeal EO 13673.

The Fair Pay and Safe Workplaces Executive Order's future is certainly in question as it faces challenges from both the executive and judicial branches of federal government. Government contractors may be breathing a collective sigh of relief, but should stay alert to potential twists and turns as the Rung case wends its way through the court system, and President Trump settles into the White House.

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