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Final Rule Amends Fair Pay and Safe Workplaces Regulations to Incorporate Preliminary Injunction; New Paycheck Transparency Requirements Take Effect January 1, 2017

By Kristin A. Tisdelle 

On December 16, 2016, the FAR Council issued a final rule amending the Fair Pay and Safe Workplaces regulations to comply with a recent Federal District Court order. See Federal Register Final Rule.  In October, the Eastern District of Texas issued a preliminary injunction blocking those portions of the Fair Pay and Safe Workplaces rules which restrict access to arbitration and impose new reporting requirements for labor violations. See Smith Pachter Client Update here.  

The final rule amends those portions of the FAR affected by the preliminary injunction to include notes that each section, provision, and clause halted by the preliminary injunction is “enjoined indefinitely” as of the date of the Eastern District of Texas order, but “will become effective immediately if the court terminates the injunction.”

In response to the preliminary injunction and a FAR Council Memorandum instructing acquisition officers and procurement executives to prevent implementation of the enjoined provisions, the GSA Integrated Award Environment has “halted actions to release the changes for the System for Award Management (SAM) that would support bidder and contractor submission of information on labor law violation decisions as well as the changes that would support public disclosure of this information in the Federal Awardee Performance and Integrity Information System (FAPIIS).”

Contractors should remain mindful that the paycheck transparency provisions of the Fair Pay and Safe Workplaces rules are not affected by the preliminary injunction. The paycheck transparency provisions take effect on January 1, 2017 and the corresponding FAR clauses will apply to new solicitations issued on or after that date.

Our firm is available to assess compliance with the paycheck transparency provisions.