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- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Federal Contracts-Working Conditions: Hours and Safety Standards in Construction Contracts
Updated: September 2009 Contract Work Hours and Safety Standards Act (CWHSSA) Who is CoveredThe Contract Work Hours and Safety Standards Act (CWHSSA) is administered by the Wage and Hour Division (WHD). The Act applies to contractors and subcontractors with federal service contracts and federally funded and assisted construction contracts over $100,000. Covered contracts include those entered into by the U.S., any agency or instrumentality of the U.S., any territory of the U.S., or the District of Columbia. The CWHSSA also extends to federally assisted construction contracts subject to Davis-Bacon and Related Acts wage standards where the federal government is not a direct party, except those contracts where the federal assistance takes the form only of a loan guarantee or insurance. Certain contracts are exempt from the CWHSSA. These include contracts for the following:
Basic Provisions/RequirementsThe CWHSSA requires contractors and subcontractors with covered contracts to pay laborers and mechanics employed in the performance of the contracts one and one-half times their basic rate of pay for all hours worked over 40 in a workweek. Employee RightsThe CWHSSA provides most workers on federal contracts the right to receive time and one-half for overtime hours worked on such contracts. The Wage and Hour Division accepts complaints of alleged CWHSSA wage violations. Recordkeeping, Reporting, Notices and PostersNotices and PostersA Poster is required to be posted on all contracts to which CWHSSA applies. The notice to be posted depends on the type of federal procurement contract involved – either the Notice to all Employees Working on Federal or Federally Financed Construction Projects (PDF)(http://www.dol.gov/whd/regs/compliance/posters/fedprojc.pdf) for Davis-Bacon contracts or, for contracts to which the Service Contract Act (SCA) applies, the “Employee Rights on Government Contracts(http://www.dol.gov/whd/regs/compliance/posters/sca.htm)” must be posted. The appropriate poster(s) must be posted at the site of the work in a prominent and accessible place where it may be easily seen by employees. There is no size requirement for these posters but they must be easily readable. RecordkeepingDepending on the type of federal procurement contract involved, the recordkeeping requirements of the Davis-Bacon and Related Acts or the McNamara-O'Hara Service Contract Act(http://www.dol.gov/compliance/laws/comp-sca.htm#recordkeeping) may apply to contracts subject to the CWHSSA. The recordkeeping requirement includes maintaining payroll records that provide the following information for each covered employee:
Records must be maintained during the course of the work and for a period of three years from the completion of the contract, and be made available to the contracting agency and the Department of Labor. ReportingWeekly payroll statement. On contracts to which the labor standards provisions of the Davis-Bacon and Related Acts apply, each contractor and subcontractor is required to provide the federal agency a weekly statement of the wages paid to each of its employees engaged in covered work. Each payroll submitted shall be accompanied by a Statement of Compliance using page 2 of Form WH-347 Payroll (For Contractors Optional Use)(http://www.dol.gov/whd/forms/wh347instr.htm), or any form with identical wording, certifying compliance with applicable requirements. The statement is to be signed by the contractor or subcontractor, or by an authorized officer or employee of the contractor or subcontractor who supervises the payment of wages, and delivered to a representative of the federal or state agency in charge. This must be submitted within seven days after the regular pay date for the pay period. Penalties/SanctionsContractors or subcontractors who violate the CWHSSA may be subject to fines, imprisonment, or both. Intentional violations of the CWHSSA may be punished by a fine or by imprisonment for not more than six months, or both. Overtime wage violations may result in the assessment of liquidated damages in the sum of $10 for each calendar day an employee is allowed to work in excess of a 40-hour workweek without payment of the required overtime compensation. Accrued contract amounts may also be withheld in sums necessary to satisfy the liability for unpaid wages and liquidated damages. Employees have rights of action and/or of intervention against the contractor and its sureties if the amounts withheld are insufficient to reimburse the unpaid wages. Under such an action, it is no defense that employees accepted less than the required rate of wages or voluntarily made refunds. Contractors or subcontractors found to have committed willful or aggravated violations of the overtime requirements may have their contracts terminated and may be declared ineligible to receive future contracts for a period not to exceed three years. Contractors or subcontractors may challenge determinations of violations before an Administrative Law Judge. Contractors or subcontractors may appeal decisions and orders of Administrative Law Judges that result in payment of wages or debarment to the Administrative Review Board. Final Board determinations on violations and debarment may be appealed to and are enforceable through the federal courts. Any contractor or subcontractor aggrieved by withholdings for liquidated damages may appeal to the head of the contracting agency. The agency head shall review the administrative determination and issue a final order. If the damages sum is determined to be incorrect, or the contractor or subcontractor inadvertently violated the provisions of the CWHSSA while exercising due care, the agency head may recommend appropriate adjustments in the liquidated damages to the Secretary of Labor. The contractor or subcontractor may file a claim in the U.S. Claims Court for all final orders mandating a liability for withholding of liquidated damages. Relation to State, Local, and Other Federal LawsThe provisions of the CWHSSA also apply to Davis-Bacon and Related Acts contracts where the contract is financed in whole or in part by grants or loans from the U.S. Government, or loans insured or guaranteed by the U.S. Government, except where the federal assistance is only in the nature of a loan guarantee or insurance. Compliance Assistance AvailableThe Department of Labor provides employers, workers and others with clear and easy-to-access information and assistance on how to comply with CWHSSA. Compliance assistance related to the Act — fact sheets, and regulatory and interpretive materials — is available on the Compliance Assistance "By Law"(http://www.dol.gov/compliance/laws/comp-cwhssa.htm) Web page. Also, the “Wage Determinations OnLine(http://www.wdol.gov/) (WDOL)” Web site provides a single location for federal contracting officers to use in obtaining Davis-Bacon wage determinations for use in covered contracts, and the WDOL Web site “library” provides a variety of links that relate to compliance with the prevailing wage laws that apply to federal and federally funded and assisted contracts. DOL ContactsWage and Hour Division(http://www.dol.gov/whd/)
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