Search form

Fair Pay and Safe Workplaces Rules ‘Misguided,’ ‘Unlawful’ and Must be Blocked, Says Texas Lawsuit – TRO Hearing Scheduled for October 21

By Leslie A. Stout-Tabackman and F. Christopher Chrisbens
  • October 19, 2016

Several large construction and security industry groups have filed a lawsuit in the U.S. District Court for the Eastern District of Texas to block the heavily criticized Fair Pay and Safe Workplaces Executive Order 13673 and related rules. The court has scheduled a temporary restraining order (TRO) hearing for October 21, 2016, just four days before the Executive Order’s requirements begin to go into effect on October 25.

The Order and Rules, often referred to as the “blacklisting” rules, were finalized in August (see our fact sheet, article, and webinar on the final rules).  

In the lawsuit, the industry group plaintiffs requested a TRO and nationwide injunction. Associated Builders and Contractors and the National Association of Security Companies alleged that their members will be irreparably harmed if the court allows federal agencies to begin enforcing the rules.

One of the most contentious provisions of the Fair Pay and Safe Workplaces Executive Order and final rules is that, during the procurement contract bidding process and post award, certain preliminary labor law decisions must be reported as “violations,” despite the fact they are not final and may be appealed or reversed.

The lawsuit alleges the “unprecedented” Order and Rules:

  1. exceed the Executive Branch’s authority,
  2. are preempted by the National Labor Relations Act and other federal labor and employment laws, and
  3. violate the constitutional rights of government contractors.

In particular, the suit argues that compelling contractors to disclose such preliminary decisions, for which they risk losing contracts, violates their “due process” and First Amendment rights.

The blacklisting rules have drawn broad criticism from federal contractors, industry groups, and Congress. Jackson Lewis will continue to follow developments in this and other cases. In the meantime, however, the requirements of the Executive Order and final rules are in effect beginning on October 25, 2016. Contractors should continue to prepare for compliance and strategic planning. For information or questions about the executive order and rules, please contact us or the Jackson Lewis attorney with whom you regularly work.

©2016 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

November 1, 2019

President Trump EO Revokes Workers’ Right of First Refusal with Successor Service Contract Employers

November 1, 2019

President Donald Trump signed an executive order on October 31 revoking the obligation of successor government service contract employers to offer their predecessor employers’ employees the right of first refusal in positions for which they are qualified. “Executive Order on Improving Federal Contractor Operations by Revoking... Read More

July 10, 2019

2019: The Mid-Year Outlook for Employers

July 10, 2019

The first six months of 2019 have proven to be busy, challenging professionals in the labor and employment communities to keep up with a number of newly enacted laws and regulations. In the 2019: Mid-Year Outlook for Employers, Jackson Lewis attorneys provide a snapshot of activity from the first half of the year as well as a preview of... Read More

May 17, 2019

The EPL Insurance Advisor – May 2019

May 17, 2019

To assist underwriters and claims professionals in assessing emerging employment risks, we are pleased to provide the first issue of our newsletter. The EPL Insurance Advisor highlights topical issues in claims, defenses, and liability risk management developments. 2019 EPLI Trends Report – What Analysts and Underwriters Should... Read More