Judge Grants Preliminary Injunction Blocking Implementation of Fair Pay and Safe Workplaces Rule
Oct 25, 2016
On October 24, 2016, Judge Marcia A. Crone issued a nationwide preliminary injunction in Associated Builders and Contractors of Southeast Texas v. Rung (E.D. Texas, No 1:16-CV-425) blocking the implementation of the Fair Pay and Safe Workplaces final rule. Specifically, the injunction blocks the implementation of the rule’s requirements that contractors self-disclose labor law “violations” and that they eliminate provisions in their arbitration agreements restricting lawsuits for Title VII or sexual assault allegations. The injunction does not, however, affect the Executive Order’s “paycheck transparency” requirements, which will take effect on January 1, 2017.
For federal contractors, the injunction was granted in the nick of time-just one day before the self-disclosure and arbitration requirements were scheduled to take effect.
The preliminary injunction will last until a final decision is reached in the case, although the government will likely ask the judge to reconsider her decision and ultimately appeal to the federal Court of Appeals for the Fifth Circuit and possibly the U.S. Supreme Court. If the injunction is upheld, it remains to be seen whether the government will attempt to revise and significantly reduce the rule to address the legal and constitutional shortcomings identified in the court’s ruling.
Finding that the plaintiff contractors demonstrated both a “substantial likelihood of success on the merits of their case” and risk of irreparable injury, the court heaped derision on the Executive Order, final rule, and DOL guidance as having:
- Imposed “complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits;”
- Violated contractors’ First Amendment rights by forcing them to “publicly condemn” themselves for allegations that may ultimately have no merit;
- Violated contractors’ due process rights by forcing them to report and defend against non-final agency allegations without a hearing; and
- Violated the Federal Arbitration Act.
The court repudiated the new class of reportable “administrative merits determinations” as “nothing more than allegations of fault asserted by agency employees and [which] do not constitute final agency findings of any violation at all.”
The court’s injunction is the latest by a Texas federal district court barring the implementation of a controversial labor regulation. In June, the Northern District of Texas blocked the DOL’s “persuader rule.” A challenge to the DOL’s new overtime regulations is currently pending in the Eastern District of Texas.
If you have any further questions, please contact your FortneyScott attorney, or e-mail us at info@fortneyscott.com
On March 29, 2024, the Office of Management and Budget published revisions to federal data that covered entities must collect on race and ethnicity.
On January 29, 2024, on the 15th anniversary of the enactment of the Lily Ledbetter Fair Pay Act, the Biden Administration announced a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings. The proposal was published in the Federal Register on January 30, 2024 and comments were due on April 1, 2024.
OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024.
Join our skilled presenters as they discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.
On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings.
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-awaited final regulation, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act.”
On March 29, 2024, the Office of Management and Budget published revisions to federal data that covered entities must collect on race and ethnicity.
On January 29, 2024, on the 15th anniversary of the enactment of the Lily Ledbetter Fair Pay Act, the Biden Administration announced a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings. The proposal was published in the Federal Register on January 30, 2024 and comments were due on April 1, 2024.
OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024.
Join our skilled presenters as they discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.
On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings.
On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-awaited final regulation, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act.”
FortneyScott is pleased to announce that its co-founder Jacqueline Scott became President of the global bar organization, Union Internationale des Avocats (UIA). As President of the UIA, Jacqueline Scott has responsibility for overseeing and leading the UIA’s attorney members in 110 countries. UIA fosters professional development and the exchange of information and ideas internationally, promotes the rule of law, defends the independence and freedom of lawyers worldwide, and emphasizes friendship, collegiality and networking among members. Additional information on Ms. Scott and her new UIA responsibilities is available here .
For the first time as President of the Union Internationale des Avocats ("UIA"), FortneyScott co-founder Jacqueline Scott attended the 67th UIA Congress in Italy late last month. The UIA is a global, multicultural organization that brings together the legal profession and whose members represent 110 countries. Ms. Scott provided her first Presidential Speech for the closing of the Congress, "Defense of the Defense" . You can view the video or read the transcript is also available.
FortneyScott and DCI Consulting Group Launch DEI Risk Assessment DEI program evaluation offers privileged critical information to mitigate risk Washington, D.C.: Fortney & Scott, LLC (FortneyScott), a leading Washington, DC law firm representing and advising a broad range of employers, has partnered with DCI Consulting Group, Inc. (DCI), a Washington, D.C.-based human resources data analytics and consulting firm, to offer a comprehensive, multi-disciplined DEI Risk Assessment. Employers and their C-Suites and Boards of Directors are facing growing challenges to their Diversity, Equity, and Inclusion (DEI) programs. In response, employers are turning to Fortney Scott and DCI as outside experts to assess their legal compliance and provide advice as to best practices. As a result, we have developed a proactive, comprehensive, and attorney-client privileged DEI Risk Assessment. This DEI Risk Assessment is a crucial first step to identifying and mitigating potential legal exposure, and includes: 1. Self-Evaluation of DEI Programs & Commitments 2. Listening Sessions with Executives & DEI Leaders 3. Legal Review & Risk Assessment of Policies, Procedures and Practices 4. Scorecard & Best Practice Recommendations “Following the recent rulings by the Supreme Court in UNC and Harvard, it is clear that the legal risks for corporate DEI programs have substantially increased.” said FortneyScott Co-Founder David S. Fortney. “The critical step for employers now is to conduct an attorney-privileged assessment of their DEI programs -- that includes necessary workforce analyses and benchmarking based on best practices -- to determine how their DEI programs should be implemented going forward.” About FortneyScott FortneyScott is a Washington, DC-based law firm counseling and advising clients on the full spectrum of DEI and workplace-related matters. The firm offers clients unparalleled experience and expertise by its attorneys, who formerly held senior positions at the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC) and other government agencies, in corporate and Congressional legal staffs, in major law firms, and who served as a judge on an international tribunal. About DCI DCI Consulting Group is a human resources risk management consulting firm strategically headquartered in Washington, D.C. Members of DCI’s staff are recognized experts in a variety of spaces, including systemic compensation discrimination analyses, affirmative action plan development and implementation, pay equity analyses, DEIA metrics, employee selection and test validation, and OFCCP audit and litigation support. DCI also offers proprietary software and related support to clients. FortneyScott Media Contact: DCI Media Contact: info@fortneyscott.com news@dciconsult.com 202-689-1200 14-448-7355
On Monday, October 30th, President Biden signed a wide-ranging executive order directing numerous federal agencies to take targeted actions regarding Artificial Intelligence ("AI"). The executive order, entitled Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the "EO"), focuses in part on the use of AI in the workplace, though it covers other areas of concern such as cybersecurity and housing discrimination. As is summarized in the Fact Sheet issued by the White House, the EO directs the Department of Labor ("DOL") to "[d]evelop principles and best practices to mitigate the harms and maximize the benefits of AI for workers by addressing job displacement; labor standards; workplace equity, health, and safety; and data collection." Some of the other specific actions called for in the EO relating to the workplace include: Requiring the DOL to issue guidance to federal contractors on how to prevent AI and other technologies from causing hiring discrimination. Directing the Department of Justice and Federal civil rights offices to combat algorithmic discrimination through training, technical assistance, and coordination on best practices for prosecuting civil rights violations caused by AI. Directing DOL to issue a report outlining how the federal government can help workers displaced by AI and other technological advancements. This includes examining current laws and "identify[ing] options, including potential legislative measures, to strengthen or develop additional Federal support for workers displaced by AI[.]" This EO represents significant action on the part of the Biden Administration to respond to public calls for action on AI but it is not an enforceable regulation. Employers should monitor the actions taken by federal agencies in response to the White House’s call to action and the growing focus in the U.S. Senate on AI legislation from Senator Chuck Schumer (D-NY) and others. FortneyScott will continue to monitor these developments and provide updates as appropriate.
