On May 28, 2015, the U.S. Department of Labor and the Federal Acquisition Regulatory (FAR) Council proposed regulatory amendments and guidance to implement the President’s Executive Order 13673, entitled “Fair Pay and Safe Workplaces.” What the Order and proposed regulations subject government contractors to a broad new set of record-keeping, reporting and compliance requirements. Failure to fulfill these obligations and exhibit compliance with all applicable federal and state labor laws would expose the contractor to the prospects of disqualification, suspension, or debarment. In sum, the regulations would require all covered contractors and subcontractors to report all unadjudicated administrative rights determinations, arbitral awards and civil judgments against it under a wide variety of federal and analogous state labor laws. Somewhat shockingly, despite having been directed by the Executive Order to propose regulations almost a year ago, the DOL and FAR Council have not even been able to identify all of the laws that this proposed system would cover. Yet, the agencies still expect the public comment period to close at the end of this month.
Last week, the Republican chairs of various House Committees and Subcommittees called upon the agencies to withdraw the problematic proposals. In the alternative, they requested an additional ninety days for analysis and submission of comments by stakeholders:
Agencies must have strong foundations on which to propose new guidance of a new regulation and must afford interested parties the opportunity to assess the changes and provide substantive and informed comments on those proposals. To ensure compliance with the spirit of the Administrative Procedure Act (APA), the comment period should allow for a deliberative process to ensure that interested parties have a complete understanding of how current and future proposals work together so that they can provide meaningful input to the agencies. This is especially true when proposals threaten due process, impose onerous reporting burdens and limit competition by favoring certain competitors while blacklisting others, resulting in significant job losses.
The proposed regulations and guidance do all these things — as well as represent an unauthorized and unconstitutional exercise of powers reserved to the Congress. Moreover, there is the real possibility that they will actually increase government cost, despite their publicly proclaimed intent. It is difficult to see how the original sixty days is near enough time to deliberate over such extensive amendment of the federal labor laws.
The letter is signed by: Reps. John Kline (R-MN), Chairman, Education and the Workforce Committee; Steve Chabot (R-OH), Chairman, Committee on Small Business; Jason Chaffetz (R-UT), Chairman, Committee on Oversight and Government Reform; Jim Jordan (R-OH), Chairman, Subcommittee on Health Care, Benefits and Administrative Rules; Richard Hanna (R-NY), Chairman, Subcommittee on Contracting and Workforce; Crescent Hardy (R-NV), Chairman, Subcommittee on Investigations, Oversight and Regulations; Phil Roe, M.D. (R-TN), Chairman, Subcommittee on Health, Employment, Labor and Pensions; and Tim Walberg (R-MI), Chairman, Subcommittee on Workforce Protections. Comments on the proposals were originally due July 27, 2015.