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 with more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries. Having built its reputation on providing premier workplace law representation to management, the firm has grown to include leading practices in the areas of government relations, healthcare and sports law. For more information, visit www.jacksonlewis.com.

See AllRelated Articles You May Like

January 7, 2019

2019: The Year Ahead for Employers

January 7, 2019

Over the past year, state and local governments responded in a variety of ways to national policy, and the midterm elections painted a picture of what’s in store for employers in 2019 and beyond. Jackson Lewis’ annual report outlines upcoming issues, trends, legislation and regulations employers need to be aware of in the coming year... Read More

April 24, 2018

New Jersey Governor Signs Pay Equity Bill into Law

April 24, 2018

New Jersey’s Diane B. Allen Equal Pay Act will take effect on July 1, 2018. The new law contains sweeping changes to the New Jersey Law Against Discrimination (LAD), such as a prohibition against discrimination with respect to compensation or financial terms of employment, a six-year statute of limitations, and treble damages for... Read More

April 18, 2018

Massachusetts Equal Pay Act Calculation Tool: What Employers Need to Know

April 18, 2018

Ever since Massachusetts Governor Charlie Baker signed the state Equal Pay Act (MEPA) on August 1, 2016, employers have been seeking direction on how employee pay should be analyzed to withstand scrutiny under the new law. MEPA goes into effect on July 1, 2018. On March 1, 2018, the Massachusetts Office of the Attorney General (OAG)... Read More