‘Fair Pay’ Executive Order Blocked – For Now

Posted October 28, 2016 at 12:16 pm

The Obama administration's Fair Pay and Safe Workplaces executive order is mostly dead for now, and employment attorneys agreed the litigation challenging it will next head to an appeals court.

A Judge issued a preliminary injunction Oct. 24 that blocks most of the executive order.

The order would require federal contractors to disclose recent labor violations when bidding on a new contract, and it allows agencies to deny contracts to violators who don't take remedial action.  Judge Marcia A. Crone of the U.S. District Court for the Eastern District of Texas set aside the bulk of the order but retained a less-publicized provision requiring contractors to improve paycheck transparency.

Starting Jan. 1, this clause mandates that companies bidding on contracts valued at $500,000 or more must inform workers about their independent contractor status and provide other wage and benefit details.

The Labor Department and Department of Justice are certain to appeal. The executive branch gets very broad authority over government contracts from the Procurement Act of 1949.

Depending on the outcome of the elections, if Democrats win control of the House and Senate, there may be a legislative push to do what the court said the president couldn't do on his own.  The judge viewed this as an executive overreach beyond the enforcement authority he has under labor laws as they're now written. A Democratic Congress could grant the president the authority the judge said he lacks.