Democrats Unlikely to Fight for Funding of Fair Pay Order Office

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By Ben Penn

June 8 — A Republican appropriations provision that would deny funds for a Labor Department office to ensure federal contractors comply with the Fair Pay and Safe Workplaces executive order is unlikely to spark much pushback from Democrats.

When the Senate Appropriations Committee takes up the Labor, Health, and Human Services spending bill June 9, it doesn't appear that Democrats will attempt to restore funding for the office by striking the GOP-backed language, a senior lobbyist who supports the executive order told Bloomberg BNA.

Instead, the executive order's proponents are focusing their efforts on a piece of the Defense authorization bill that they find far more damaging to the order.

The bill, approved by a Senate subcommittee June 7 (109 DLR A-8, 6/7/16), would withhold funding to create a DOL Office of Labor Compliance, which was intended to implement the president's 2014 executive order.

While it's still possible a lawmaker could introduce an amendment to the labor appropriations bill to save the DOL office in fiscal year 2017, Democrats concerned about this issue have a greater priority.

Led by Sen. Richard Blumenthal (D-Conn.), they're currently trying to remove Republican-backed language in the National Defense Authorization Act that would exempt the DOD from the executive order (102 DLR A-4, 5/26/16).

The order (Executive Order 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 (147 DLR AA-1, 7/31/14).

Backers of the EO can always resume calling for the creation of a DOL enforcement and technical assistance office in the next administration, said the lobbyist.

Congress passed similar language in the fiscal 2016 government spending package, also denying the president's request for a new DOL office. “You could've made the argument that not getting” the office created “last year was less significant,” Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, told Bloomberg BNA. “I think this year it's more significant because they are closer to finalizing this, so that takes on a little bit higher level of importance, I guess.”

Rules Should Soon Be Finalized

The Federal Acquisition Regulatory Council and the DOL, which are implementing the EO, sent draft final rules and guidance, respectively, to the White House for review in May (86 DLR A-9, 5/4/16). The administration, in its latest regulatory agenda, estimates the regulation will be issued in August (97 DLR B-2, 5/19/16).

Freedman, who sits on a coalition of business groups that fiercely oppose the order and have vowed to litigate it (61 DLR C-1, 3/30/16), offered another reason Democrats may not be motivated to fight for the government investment. The appropriations language “doesn't stop labor compliance advisers from being placed into different agencies outside of the Department of Labor, but it does say that the department can't develop the office to coordinate its activities,” he said.

In other words, the spending bill wouldn't preclude the DOD, for instance, from assigning its own staff to oversee the compliance tasks originally intended for the DOL to oversee.

According to a summary of the bill released by the appropriations subcommittee Republicans, the DOL office “would have played a central role in a new government-wide initiative to hinder businesses from competing for federal contracts.”

Karla Walter, director of the American Worker Project at the Center for American Progress, told Bloomberg BNA that “the DOL is central in the administration of the order.” She said the appropriations language is just the latest in a series of Republican legislative attacks against anything the administration does to help workers.

Independent of the spending bill effort to defund the compliance office, Walter said she is confident the White House strongly supports the Fair Pay and Safe Workplaces EO and will veto the Defense measure as long as it exempts the DOD. Defense contractors account for about two-thirds of all government contracts.

The White House did release a statement June 7 objecting to the Senate NDAA bill for, among other reasons, exempting defense contractors from the EO.

Asked how essential a compliance office would be in the next fiscal year, the DOL declined to comment. A spokeswoman for Sen. Patty Murray (D-Wash.), the ranking member of the labor appropriations subcommittee, also declined to comment.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com