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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 Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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