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On October 24th, 2016, one day before the new Fair Pay and Safe Workplaces Rule was to take effect, a federal judge in Texas issued a preliminary injunction shutting down the “blacklisting” rule.  The Associated Builders and Contractors of Southeast Texas filed the case against the administration.  Some of the legal arguments and notable comments by the court were as follows:

  • Claims that the Executive Order, FAR Rule, and DOL Guidance, Separately and Together, Exceed the President’s FAR Council’s, and DOL’s Authority Are Otherwise Preempted by Other Federal Labor Laws
    • There is no statutory basis to treat these “administrative merits determinations” as final and binding while they are still being contested or when they are settled without admission of fault. Thus, it appears to be a denial of fundamental statutory and constitutional rights for the Executive Order and FAR Rule to so act.
  • Claims that the Executive Order, FAR Rule, and DOL Guidance Violate the First Amendment
    • It is well settled that the First Amendment protects not only the right to speak but also the right not to speak. For this reason, government compulsion of speech has repeatedly been found to violate the Constitution. For all of the foregoing reasons, the reporting requirements of the Executive Order, the FAR Rule, and the DOL Guidance, appear to violate the First Amendment and must be preliminarily enjoined to prevent irreparable harm to Plaintiffs’ members from compelled speech that is not narrowly tailored to achieve any compelling government interest.
  • Claims that the Executive Order, FAR Rule, and DOL Guidance Violate the Due Process Rights of Government Contractors and Offerors
    • These examples of enforcement agency conduct that has later been rejected by the courts illustrate the fallacy and danger of the DOL Guidance’s definition of “violation.” Under the Executive Order and FAR Rule, a court’s vindication of a contractor’s position may well come too late. The damage to a contractor’s business and reputation stemming from a reportable “violation” later reversed cannot be undone.

You may read the full order granting preliminary injunction here. Stay tuned for more information.

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