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By Ben Penn
July 21 — Efforts to weaken the reporting requirements of the Fair Pay and Safe Workplaces executive order are likely to cause a flurry of Capitol Hill activity during the long summer recess.
With Congress out of session, pending language in the fiscal year 2017 National Defense Authorization Act to exempt the Defense Department from the executive order is going to attract considerable attention at meetings between lobbyists and staffers in the coming weeks, according to advocates.
The executive order (E.O. 13,673) requires businesses seeking government contracts worth more than $500,000 to disclose violations of 14 federal labor and employment laws—and state-law counterparts—for the previous three years.
Lobbyists representing unions as well as worker advocacy, women's rights and disability rights groups are trying to shore up support for removal of the DOD exemption from the final bill.
They'll be continuing discussions with key White House personnel about issuing a strong veto threat and are hoping to hold meetings with lawmakers on the topic at the Democratic convention in Philadelphia next week, a senior lobbyist who favors the order told Bloomberg BNA.
The House and Senate versions of the NDAA contain different but similarly intentioned provisions that generally prohibit the order's applicability to defense contractors. DOD awards the majority of all government contracts.
The variation in the two chambers' language requires a resolution at conference committee. However, the recess means that members recently appointed as conferees won't have a full debate on the bills' more controversial elements until they reconvene in September.
That leaves lobbyists now jumping at the chance to influence the staffers who will be hard at work in the coming weeks cranking out a conference report.
“We’re remaining engaged, we are continuing to talk to offices,” of House-Senate NDAA conferees, Roger Jordan, vice president of government relations at the Professional Services Council, told Bloomberg BNA July 20. “We’re well aware of the efforts of the opposition, and we’re continuing to ensure that our point of view is heard and understood.”
PSC, a trade association representing federal contractors, has joined the U.S. Chamber of Commerce, the HR Policy Association and other business groups to oppose the order signed by President Barack Obama in 2014. The coalition pushed for provisions in both chambers' defense authorization bills.
The executive order's proponents are scheduling meetings of their own because they feel more education is necessary for conferees on both sides of the aisle on why Fair Pay and Safe Workplaces can't be weakened in the NDAA, the senior lobbyist said.
Most Senate Democrats already signed a letter encouraging the committee to fully restore the order to all contractors. House Democrats are circulating a dear colleague letter with the same goal.
These letters should ensure that the staffers themselves don't reach an agreement to retain the provision, the senior lobbyist said. Instead, it's likely that the issue is controversial enough that it will be left for conferees to decide in September.
The PSC's Jordan agreed with this prediction.
Despite having the majority party's headcount advantage at conference, Jordan said the president's support for his executive order does create a hurdle.
“Clearly there are a large number of Democrats that are protecting the president on this issue. And that’s going to be a big obstacle to overcome,” he said.
The final outcome will likely be negotiated behind closed doors, possibly by the conferee leaders and ranking members, where a negotiation is tough to handicap, Jordan said.
“We’ll have to wait and see, but we are optimistic and we are hopeful that at the very least we end up with language that’s as strong if not stronger than what the Senate bill established,” he added.
The House version of the FY 2017 NDAA excludes both the DOD and the National Nuclear Security Administration from the order, while the Senate bill only removes defense contractors.
Another difference is that the Senate language states that DOD contractors would still be subject to the executive order if they've already been suspended or debarred for labor violations under the existing mechanism.
Officials with the Center for American Progress, one of the original groups to ask the administration to sign this executive order, remains in talks with the White House, Karla Walter, director of CAP's American Worker Project, told Bloomberg BNA.
The White House has already issued statements of opposition to the House and Senate NDAAs, citing the Fair Pay and Safe Workplaces language, among other provisions it disfavors.
Defense Secretary Ashton Carter also wrote conferees July 14 to outline why exempting DOD from the order is inappropriate.
These statements combined with the number of Democrats signing on to letters are enough to convince Walter that “we're in a really good place. But it's something that we have to keep working on because we know there are folks on the other side of this issue that don’t want to see this order implemented.”
A stronger White House statement of opposition to the DOD exemption from the order would give Democrats more leverage during conference negotiations, Sen. Richard Blumenthal (D-Conn.) told Bloomberg BNA in May. Blumenthal collected signatures with Sen. Patty Murray (D-Wash.) for the Senate's opposition letter.
Unlike appropriations measures, the NDAA is a policy bill that must be passed annually for the DOD's operation.
The business opposition reflects concerns from private sector contractors of all sizes, the PSC's Jordan said. The larger contractors are worried about the challenge of collecting information on their subcontractors' history of labor violations, he said. The smaller companies “don't have additional resources to focus on this.”
Walter countered that the order is essential for workers and also ensures law-abiding companies “are competing on an even playing field” for federal contracts.
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