November 30, 2022

Volume XII, Number 334

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Congress Repeals Controversial Fair Pay and Safe Workplaces Regulations

Final closure for federal contractors awaits the president’s signature.

On March 6, 2017, the US Senate voted in favor of House Joint Resolution 37 (H.J. Res. 37), which would repeal the regulations spurred by former US President Barack Obama’s July 31, 2014 Executive Order on Fair Pay and Safe Workplaces in their entirety. Specifically, H.J. Res. 37, once signed by President Donald Trump, will revoke the paycheck transparency component of the regulations, which went into effect on January 1, 2017.

H.J. Res. 27 will also permanently nullify the other two components of the 2014 executive order involving labor violation reporting and arbitration restrictions. These two components were preliminarily enjoined by Judge Marcia Crone of the US District Court for the Eastern District of Texas on the eve of their effective date last October. H.J. Res. 37 uses the authority of the Congressional Review Act (CRA) to revoke the Federal Acquisition Regulation (FAR) implementing the Fair Pay and Safe Workplaces executive order in their entirety. The CRA is a little-used oversight tool under which members of Congress can review major rules enacted by federal agencies under delegations of authority from Congress. Under the CRA, Congress has at least 60 days to review an agency action. If Congress votes to object, it can repeal the agency regulations with the president’s signature. Once regulations are revoked under the CRA, agencies may not enact substantively similar future regulations without prior approval from Congress.

The Fair Pay and Safe Workplaces regulations sparked controversy from the day the FAR Council published the proposed rule and then-incomplete DOL guidance. The proposed rule drew more than 800 public comments, and the DOL guidance drew more than 7,000. Industry and regulators debated the rule and its requirements in the following months, and the FAR Council’s final regulations and accompanying guidance published in August 2016 provided little relief for federal contractors. The regulations were challenged by industry almost immediately, resulting in a federal court injunction that stayed all but the paycheck transparency provisions. 

Read our prior analyses of the regulations here and here.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VII, Number 66
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About this Author

Sheila A. Armstrong, Morgan Lewis, Contract Negotiation Lawyer, Compliance Audits Attorney
Partner

With a focus on government contracts, Sheila Armstrong represents a variety of companies in all aspects of government contracting including counseling, contract negotiation, and litigation matters. Sheila routinely counsels companies that sell commercial products and services to the government in both contractual and civil settings. She frequently advises clients with respect to General Services Administration (GSA) and Veterans Affairs (VA) Federal Supply Schedule contracts, with a focus on proposal preparation, negotiation, contract compliance issues, audits,...

214.466.4175
Stephen Ruscus, Morgan Lewis, government contracts lawyer
Partner

Stephen E. Ruscus represents clients in government contracts procurement, US federal drug pricing programs, and in litigation before the Boards of Contract Appeals, the US Court of Federal Claims, and the US Government Accountability Office (GAO). He also advises in protest practice before the US Small Business Administration and in matters relating to federal procurement of commercial items and services, including those under Federal Supply Schedule contracts.

202-739-5870
Paul Evans, Morgan Lewis, labor and employment lawyer
Partner

Paul C. Evans represents employers at the US state, federal, and appellate level in employment discrimination class actions, wage and hour cases, multiplaintiff and complex litigation, and other labor and employment matters. He also defends clients facing challenges to employer-selection devices such as pre-employment tests and credit and criminal record checks. Paul counsels clients in the entertainment, retail, telecommunications, technology, and insurance industries with matters in jurisdictions across the United States. Paul serves as the operations partner for the...

215-963-5431
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