Obama Drafts Order on Paid Sick Leave for ContractorsComments Off

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The New York Times just announced, “Obama Drafts Order on Paid Sick Leave for Contractors.”  The talk is of action, swift action, but the reality of impact is something else. Industry will use a series of powerful factors to delay, water down, and altogether minimize what the executive order does. It states impressive goals but the opposing power to stall and to defeat looms large.

This is the latest such order in a series including a year-old one about nasty labor practices  Both the President’s side, and industry opponents, talk as though these orders will explode into instant impact totally changing the national workplace. No way.

Consider these points.

First, industry has made clear it will oppose these orders in court. And a conservative judiciary stands ready to listen sympathetically to their opposition. These executive orders are grounded in the President’s power to prescribe practices for government contractors. President Obama has broad power, not to promote idealistic industry practices, but to establish practices for federal government contractors specifically. It’s not to govern all companies, just federal contractors – and it must promote good government contracting, not just a better society.

The history of Presidential power to issue such orders is checkered. Presidents have succeeded over the years in similar executive orders against racial discrimination and, at and extreme inflationary point in the 1970s, even temporary wage and price controls. On the other hand, an appellate court struck down in the 1990s an executive order against “striker replacement,” an employer practice of breaking strikes by replacing the strikers. In the face of specific labor law that allowed striker replacement, the court did not think the President had the power.

Second, there is a limit to how many contractors will even accept coverage by the order.   Federal government contracting is just a part even of the federal budget and hence a very small part of the gross national product as a whole. Some specialized government contractors, namely, defense contractors, get a disproportionate share. By contrast, many contractors may stretch the facts to claim they are commercial (like those who make basic materials for highway-building), small, or otherwise not covered.

A crucial question is how much coverage gets implemented not just to “prime” federal contractors, but to “lower tier” subcontractors. Obviously, when Lockheed builds planes, the subcontractors who produce the avionics should get covered. Subcontractors may total as much in size as 60% or even 75% of particular defense contracts But how far does that go? How does a prime contractor get penalized for intentionally, recklessly, or just mistakenly failing to do something about noncompliant subcontractors?

Even when the executive order and the implementing orders say they apply to subcontractors, the enforcement may be diluted.  If the regulations are vague or weak on how far they reach or what they command, the contractors or subcontractors may just thumb their nose at the regulations. And then much of the economy may not get covered.

Third, it takes years to implement an executive order. Do not imagine President Obama issues it on Monday and the covered contractors snap to attention Tuesday. The executive order merely gives guidance as the implementing body on contractor regulations starts figuring out what to do. It takes many months before they have draft regulations. Then the draft regulations need an extended comment period for industries and other. Then there is a long period to analyze the comments and come up with final regulations. Then there is further work coordinating the contracting officers throughout the government, with the Labor Department which knows sick leave.

But meanwhile, events move forward. A new President takes office in a year and a half. A Republican President can and, it may even be hazarded, probably will, reverse such an executive order with the stroke of the pen (as Senate Republicans said a few months ago about the Iran nuclear deal). The promise to ditch the paid sick leave order would be immensely popular when it comes in 2015-2016 to seeking big campaign contributions from the very well-heeled Republican contributors with a large ownership interest in affected businesses. Those seeking the nomination may be making such promises even as you read these words.

Also during the delays, conservative House and Senator party leaders can supervise something of a war on such an executive order. They seek for it to be blocked or diluted by riders on appropriation bills. President Obama can treat such riders as veto bait, but, a lot of riders will get fought or negotiated over in 2015-1016. Some may get stopped, while some are accommodated.

At all these stages, swarms of well-financed, well-connected lobbyists from industry opponents will swarm over the process. We are in Act One of a full-length drama.

This article was written by Charles Tiefer from Forbes and was legally licensed through the NewsCred publisher network. Talent HQ is a premier information channel empowering professional development for recruiting and HR communities through regional events including Minnesota RecruitersWisconsin RecruitersFlorida Recruiters and California Recruiters.

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Talent HQ’s creator and editor is Recruiting & Diversity Leader, Jason Buss. Talent HQ is a premier online news and information channel for the Recruiting and Human Resources community.

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  • Posted on: Sunday, August 9th, 2015