Congress Moves To Strike Down "Blacklisting" Rule

February 03, 2017

This week, the House voted 236 to 187 to disapprove the final rule implementing President Obama's Fair Pay and Safe Workplaces Executive Order, with the Senate expected to follow suite early next week, sending the measure to President Trump.   The vote was not entirely along party lines.  Democratic Reps. Lou Correa (D-CA), Jim Costa (D-CA) and Henry Cuellar (D-TX) voted in favor of the resolution, while Republican Rep. Ileana Ros-Lehtinen (R-FL) voted against it.  In October, a federal judge in Texas put most of the implementing regulations on hold, but allowed separate pay information obligations to go into effect in January.  The House measure would strike down the entire final rule, including the pay information obligation, and preclude the FAR Council from ever publishing a similar regulation in the future.  Over the past two years, HR Policy has helped lead the effort to overturn the rule because it would have undermined the integrity of the federal contracting process and denied due process rights to contractors.  Meanwhile, in an effort to reduce new regulatory burdens, President Trump signed Executive Order 13771, which requires federal agencies to identify and eliminate two existing regulations for every new rule implemented.  Specifically, the E.O. requires that the costs associated with a new regulation are offset by the elimination of existing costs associated with at least two prior rules.  The order goes into effect immediately and directs that the net cost of all new regulations in fiscal year 2017, which ends September 30th, must equal zero.  For future years, the OMB will establish for each agency the net amount of new regulatory costs they can impose.  The E.O. will be challenging to implement because about one-half of federal rules are mandated by law.  Notably, rules related to the military, national security, and foreign affairs are exempt from the order.