Round One in Blacklisting Legal Battle Goes to Federal Contractors

October 28, 2016

This week, opponents of the Fair Pay and Safe Workplaces (a.k.a, Blacklisting) Executive Order scored a key legal victory when a federal district court judge in Texas granted a request from Associated Builders and Contractors for a preliminary injunction the day before parts of the Order were to take effect, noting the government failed to support the "basic premise" of the Order that "public disclosure of non-adjudicated determinations of labor law violations on private projects correlates in any way to poor performance on government contracts."  Judge Marcia A. Crone’s decision also observes:

During the course of many decades, neither Congress, nor the FAR Council, nor the DOL has deemed it necessary, practicable, or appropriate for government contracting officers to make responsibility determinations based on alleged violations of private sector labor and employment laws… The Order and Rule appear to conflict directly with every one of the labor laws they purport to invoke by permitting disqualification based solely upon "administrative merits determinations" that are nothing more than allegations of fault.

There will likely be a full hearing before Judge Crone on the merits before the end of the year and, if it reaches the same result, the government is expected to appeal.  Associated Builders is part of a larger coalition that HR Policy Association is involved with that is assessing the possibility of also filing a separate suit in a different federal circuit to ensure ultimate review by the U.S. Supreme Court.  Success in these challenges could help check the recent trend of using executive orders to shape federal employment policy.