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Mar 31, 2017

Fair Pay and Safe Workplaces Executive Order Now a Part of History

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From the moment President Obama, in the summer of 2014, put his signature on an executive order requiring contractors to report labor statutes violation, what is called the Fair Pay and Safe Workplaces has been bitterly opposed by large chunk of the construction industry.

In signing the order, Obama noted that “Contractors that consistently adhere to labor laws are more likely to have workplace practices that enhance productivity and increase the likelihood of timely, predictable, and satisfactory delivery of goods to the federal government.”

By any measure the order seemed pro-active, trying to reduce  - if not entirely stamp out -workplace violations on the part of contractors doing work for the federal government.

In so doing, contractors under the order would be required to report any and all workplace violations going back three years. Based upon that information, government officials would determine whether the contractor was, in fact, a “responsible source that has a satisfactory record of integrity and business ethics.”

In other words, as Washington Post columnist Joe Davidson put it, the key focus of the order was to ascertain if any previous violations of fair play and workplace standards “could be used to prevent that company from getting future contracts, among other options.”

Brian Turmail, a spokesman with the Associated General Contractors of America, said the response to Obama’s order among AGC members was instantaneous.

“The order obvious applied only to people who are doing direct work for the federal government,” says Turmail, “but among that segment of our membership, they were absolutely tremendously concerned about this measure.”

Others have been more enthusiastic.

“The idea was that before federal agencies award contracts of more than $500,000 to a contractor, they should check whether the company has complied with labor laws,” Christine Owens, the executive director of the National Employment Law Project, said in a statement last month.

“The rule simply required that contractors disclose any violations of worker protection laws,” Owens continued, “the same way they have to disclose violations of other laws when bidding for a contract.”

Emily Gardner, a worker health and safety advocate for the non-profit Public Citizen, says Obama’s order was needed and straightforward.

“It was meant from the start to safeguard tax-payer dollars, ensuring that they don’t go to unsafe contractors,” says Gardner.

“It was also meant to ensure compliance and protect workers from unfair arbitration practices,” continues Gardner, adding: “These were all very common sense reforms.”

But the order left many contractors confused.

What did and didn’t constitute a violation was broadly drawn, leaving contractors in the position of having to report an allegation of a violation to the federal government before that allegation was finally determined by any agency.

At the same time, prime contractors under the order would be required to report any alleged violations on the part of their subcontractors.

“The federal government already has in place processes that are transparent and fair in these matters,” says Turmail.

“But what this order did was add a level of opaqueness and unfairness that no one could have imagined.”

Last fall a federal judge in Texas agreed with the order’s critics. Responding to a lawsuit filed by the Associated Builders and Contractors of Southwest Texas, Judge Marcia Crone said the order was an overreach of presidential authority.

Issuing an injunction preventing the order’s implementation, Crone additionally contended that federal labor laws previously passed by Congress were never intended to be used as a weapon against government contractors.

While Crone’s ruling stopped Obama’s order for the moment, the results of the 2016 election essentially sounded its death knell.

In early March the House of Representatives passed a measure condemning the Fair Pay and Safe Workplaces order, shortly before President Trump issued his own executive order nullifying Obama’s order and calling it an “unnecessary and burdensome process that would result in delays and decreased competition for federal contracts.”

Turmail hails Trump’s decision: “It’s absolutely good news, and an important step in protecting the fairness and integrity of the federal contracting process.”

But Teamsters President Jim Hoffa described Trump’s order as a “disappointing development.” In a statement, Hoffa added that all the Fair Pay and Safe Workplaces order did was to not only protect federal contract workers, but ensure that “our tax dollars were not going to be given to companies that violate labor law.”

Gardner says she doesn’t think the issue is settled forever.

“If anything can come from this, I am hoping that working people and their allies will see what is going on and will let Congress know that this is not acceptable,” she says.

 

By Garry Boulard

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