To level the playing field for federal contractors, President Trump recently revoked the Fair Pay and Safe Workplaces Executive Order (Executive Order 13673) Also known as the “blacklisting” order, this was first signed by President Obama in 2014. The recent annulment ordered federal agencies to repeal any orders, rules, regulations, guidance, guidelines, or policies implementing and enforcing the Fair Pay order.
As a result, federal contractors of all sizes no longer have to report alleged labor violations to U.S. federal agencies as part of the bidding process. They don’t have to comply with procedures involving paycheck transparency and other associated issues either. What’s more, contractors can now enter into mandatory arbitration agreements concerning employee Title VII claims. So, revoking this order is a benefit to federal contractors.
Support for Fair Pay and a Safer Workplace
Federal contractors provide the U.S. government with a broad range of products and services. While assisting the government, these contractors must abide by labor laws and maintain safety standards to meet government requirements. Under the Fair Pay order, contracting officers could delay or even ban contractors from taking part in government work if they believed that contractors weren’t meeting federal standards.
The Fair Pay executive order had its adherents when first enacted. Some, such as David Michael, assistant secretary for Labor for Occupational Safety and Health, saw it as a benefit to both the workers and the general public. He believed that making a contractors’ record available to the public, demonstrated to investors, potential employees, and customers that safety was a top priority that contractors were all entitled to.
Groups initially supporting Obama’s order included the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). This group and its supporting 56 trade unions felt the law would make the workplace safer throughout the industry and fairer for law-abiding contractors. As Labor Secretary Thomas Perez stated: “Contractors that illegally cut corners at the expense of their workers should not benefit from taxpayer-funded federal contracts.”
Nancy Zirkin, executive vice president, The Leadership Conference on Civil and Human Rights, also supported the executive order. She believed it would protect millions of workers from wage reduction, workplace discrimination, and dangerous working conditions. She also felt the executive order was “a major step forward in ensuring that federal contractors provide fair and safe conditions for their employees.
A Step in the Wrong Direction
Many contractors were against the executive order. Their concerns started before it even went into effect. Public outcry forced the government to extend the period of public discussion before implementation. Meanwhile, leadership in the U.S House and Senate both requested that the Department of Labor withdraw its proposed advice on the matter.
Leadership focused on issues regarding state laws covered under the order, deciding whether prime contractors would need to facilitate subcontractor reporting. Congressional leaders felt that these unsettled issues made it impossible for federal contractors to provide useful feedback and prevented the FAR Council from adequately estimating the genuine cost of these laws.
Construction industry groups, such as the Associated General Contractors of America (AGC) and the Associated Builders and Contractors (ABC), also had concerns about Obama’s order, which they renamed the “blacklisting rule.” They felt that this order stopped smaller subcontractors from applying for federal contracts because of the risks involved, along with the lack of staff to make sure they complied with the law.
The AGC’s Chief Executive Officer Stephen E. Sandherr put it this way: “This new Obama administration’s rule is a step in the wrong direction when it comes to weeding out the very few unfair and unscrupulous federal contractors.”
Sandherr also felt that the Order gave federal bureaucrats the unfair ability to decide which firms were permitted to apply for contracts and which should receive governent punishment for safety violations. They could base these decisions on “alleged” violations, personal, political or social causes, instead of violations not carried out and to what extent.
Others criticized the order for failing to level the playing field. Critics stated that any companies with a history of violations would be exposed before work began or not hired because the violations made them unsuitable for the jobs available. Suitable contractors are less likely to be affected by anyone unsuitable who is bidding for a position.
Fair Pay and a Safe Workplace: Why Accidents Aren’t Reported?
A 2015 study from the AFL-CIO-connected: Center for Construction Research and Training, surveyed 135 construction workers, creating a list of reasons why accidents and injuries never get reported. The most popular reasons listed were:
- A small incident that didn’t even matter
- Accepting pain as part of their job
- Not wanting to be depicted as “a complainer”
- Feeling home treatment was enough
- Not sure if this incident was a result of work
- Fearing the loss of their current job
- Difficulty finding a future job
- Cannot afford the time off to visit a doctor
Another critical reason for workers not reporting an injury is not wanting to be penalized for unsafe work practice. Reporting these injuries and near misses could cause employees to lose out on cash bonuses because of safety violations.
Most workers don’t want to be considered accident-prone or described as crybabies because of an accident.
Instead, they tend to brag about their scars, never wanting to be seen as weak or unable to “take it.” The Fair Pay and Safe Workplaces Executive Order did nothing to create a safer work environment that reduced the chance of one of these accidents occurring in the first place.
Whatever the case is with reporting injuries, Trump’s revoking of the Fair Pay and Safer Workplaces Executive Order, improves workplace safety because it increases the reporting of safety data. This order also defends the construction industry from a law that was not just bureaucratically cumbersome but also confusing.