The Department of Labor’s Wage and Hour Division (WHD) announced effective January 1, 2021, the new minimum wage for federal government contractors will be $10.95/hour as instructed by Executive Order 13658 (the Order), Establishing a Minimum Wage for Contractors.
The Order, adopted in 2014, raised the hourly minimum wage for federal contractor employees beginning on January 1, 2015, with annual adjustments after that. Each year, the WHD conducts an assessment to determine the yearly inflation-based increases to the minimum wage rate. The 2021 rate is an increase of $0.15/hour over the 2020 minimum wage.
The minimum wage for federal contractors applies to four categories of contractual agreements; service contracts covered by the Service Contract Act, construction contracts covered by the Davis-Bacon Act, concession contracts, and contracts connected with federal land use or property under which services are offered. However, any fringe benefits paid to workers may not count towards the wage rate.
The U.S. District Court for Southern District of New York struck down major portions of the U.S. Department of Labor’s (DOL) joint-employer final rule, which was issued earlier this year. The court found DOL’s new interpretation for vertical joint employer liability conflicts with the Fair Labor Standards Act (FLSA), and the DOL violated the Administrative Procedure Act’s (APA’s) rulemaking requirements.
In the joint-employer final rule, DOL revised the interpretation of joint-employer status under the FSLA to promote certainty for employers and employees and uniformity among court decisions, and to reduce litigation. The decision found that the update narrowed the definition of joint-employer, ignoring the FLSA’s broad definitions making it in direct conflict with FLSA.
Additionally, the DOL failed to adequately justify its departure from its prior interpretations, which violates the Administrative Procedure Act (APA). The APA requires agencies to ‘examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.
The DOL is expected to appeal this decision, but regardless of the next steps, employers in potential vertical joint employment scenarios should be aware of the decision and prepared to make changes to workforce and staffing arrangements in support of the final rule.
The U.S. Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-5 to clarify an employer’s obligation under the Fair Labor Standards Act (FLSA), to track compensable hours employees work while away from worksites or premises controlled by the employer. This guidance responds to the unprecedented number of telework or remote work arrangements that arose in response to COVID-19.
The guidance reaffirms that employers are obligated to compensate their employees for all hours worked, including work not requested but permitted, and applies equally to work performed at home. Therefore, if the employer has reason to believe that an employee is performing work, the time must be counted as compensable hours worked.
Employers must pay employees the same hourly rate or salary regardless of where the work is taking place; unless the employer has a union contract or other employment contract. Additionally, when the Service Contract Act (SCA) or other state laws regulating the payment of wages also apply, nothing in the guidance nullifies or overrides any higher standards provided by such laws.
The guidance also emphasizes the employer’s obligation to track all compensable hours worked by employees, which could be satisfied by providing a reasonable reporting method that also captures the non-scheduled time and even hours not requested by the employer. Keep in mind that if an employee fails to report unscheduled hours worked through such a method, the employer is then not in violation of the FLSA as the employer has no reason to know about those hours.
The WHD intended this guidance as another tool to help ensure employees receive the wages they have earned and that employers have the means to manage remote workers. This is a link to the Bulletin; https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_5.pdf
On August 3, 2020, the Wage and Hour Division of the U.S. Department of Labor (DOL) released additional Q&A information regarding COVID-Related paid sick leave provided under the Families First Coronavirus Response Act for employees working under the McNamara- O’Hara Service Contract Act (SCA) and the Davis-Bacon Act (DBA).
The DOL’s question and answer information provides clarification to employers working on government contracts on the appropriate use of fringe benefits. Specifically, the DOL clarifies that an employer generally should not include the SCA or DBA health and welfare fringe benefit rate when determining the “regular rate” of pay for purposes of the FFCRA paid leave. This is true even when the employer has opted to pay the fringe amount as cash in lieu of a benefit.
To provide some background, the SCA and DBA include a fringe benefit payment obligation for each wage determination. A contractor must generally meet this benefit payment requirement for each hour worked by an employee working on the government contract. The fringe benefit obligation also applies to hours that an employee takes for vacation, sick leave, and holiday hours up to a maximum of 40-hours per week or 2,080 hours per year on each contract. Separately, Executive Order 13706 (EO 13706) added a requirement for SCA and DBA contractors to provide up to seven (7) days of paid sick leave every year for new and replacement contracts on and after January 1, 2017.
The Families First Coronavirus Response Act (FFCRA), which became law on March 18, 2020, includes a temporary requirement for employers to provide up to 14 days of paid sick leave under certain situations due to an employee’s need to take leave from work due to COVID-19. The amount to be paid the employee for this expanded paid family and medical leave is based on the employee’s ‘regular rate’ for up to the fourteen (14) day period.
For purposes of the FFCRA, an employee’s ‘regular rate’ is the higher of: the employee’s regular rate of pay, the federal minimum wage in effect under the Fair Labor Standards Act, or the applicable State or local minimum wage. Under this recent DOL guidance, an employer need not include the hourly fringe benefit obligation when determining an employee’s regular rate’ for FFCRA-paid leave.
It is important to note that an employer that provides health insurance to the employee must maintain the employee’s health insurance while the employee is taking FFCRA paid leave as if the employee was working. If an employee takes the FFCRA-expanded leave concurrently with other leave provided under the SCA, DBA, or EO 13706, then the health and welfare fringe benefit rate or the monetary equivalent, would apply to the hours taken by the employee.
The U.S. Department of Labor’s Wage and Hour Division (WHD) will offer virtual compliance assistance seminars for contracting agencies, contractors, unions, workers, and other stakeholders to provide information about the legal requirements to pay prevailing wages on federally funded construction and service contracts.
The training is the latest in WHD’s ongoing efforts to increase awareness and improve compliance with federal prevailing wage requirements among employers performing work on federally funded construction or services contracts. The seminars will include video training on a variety of Davis-Bacon Act and Service Contract Act topics that will be provided to participants after registration for self-paced study before live, interactive question and answer sessions. WHD experts will field questions during these live sessions, and lead discussions about topics participants raise.
WHD offers the live portions of these seminars at the following dates and times:
Davis-Bacon Act Virtual Prevailing Wage Seminar
Service Contract Act Virtual Prevailing Wage Seminar
While seminar attendance is free, registration is required.
The U.S. Department of Labor, Wage and Hour Division (WHD) released additional guidance concerning the use of paid sick leave on certain federal contracts under the Emergency Paid Sick Leave Act or expanded family and medical leave under the Families First Coronavirus Relief Act (FFCRA). The guidance offers compliance support to businesses with federal service contracts covered by the Service Contract Act and federal construction contracts covered by the Davis-Bacon Act.
The guidance, laid out in a Question and Answer format, helps clarify contractor obligations. The guidance is available at www.dol.gov/agencies/whd/pandemic/sca-questions. Additionally, the WHD offers information on everyday matters businesses and workers face when responding to COVID-19 and its effects on wages and hours at www.dol.gov/agencies/whd/pandemic.
The Department of Labor’s Wage and Hour Division (WHD) recently published additional guidance for employers and workers on how the requirements and protections of the Family and Medical Leave Act (FMLA), the Fair Standards Act (FLSA), and the Families First Coronavirus Response Act (FFCRA) affect the workplace. The WHD understands how critically important this information is to employers and workers.
This guidance is the latest addition to compliance assistance materials that address critical issues in all three laws. The information provided includes a Fact Sheet for Employees, a Fact Sheet for Employers, and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA.
WHD has also released two FFCRA guidance posters, one for federal workers and one for all other employees, and offers simple Quick Benefits Tips to determine how much paid leave the FFCRA allows employees to take.
Furthermore, WHD provides employers and employees information on everyday issues they face when responding to the coronavirus and its effects on wages and hours worked under the FLSA and job-protected leave under the FMLA at https://www.dol.gov/agencies/whd/pandemic
The Health & Welfare Fringe Benefit Rates will remain $4.54 for those affected Service Contract Act wage determinations.
The low-level (employee-by-employee) benefit will remain $4.54 per hour or $181.60 per week or $786.93 per month. Also, Wage and Hour Division (WHD) will continue to issue SCA wage determinations based on the average cost method of compliance. The high-level (average cost) benefit rate will remain $4.54 per hour.
Additional SCA Health & Welfare Fringe Benefit Rate Information
All service contracts that contain paid sick leave (EO 13706) will utilize the lower fringe rate of $4.22 SCA health & welfare benefit rate.
Click here for more information.
The U.S. Census Bureau announced construction spending for May 2020 was at a seasonally adjusted annual rate of $ 1,356 billion, 2.1% below the revised estimate in April. Compared to 2019, May 2020 total spending is up 0.3%. Also, during the first five months of 2020, construction spending amounted to $ 543 billion, 5.7% above the $ 514 billion for the same period in 2019.
While private construction spending in May was $ 1,001 billion, 3.3% below the revised April estimate of $ 1,035 billion, public construction spending was $ 355 billion, 1.2% above last month’s revised estimates of $351 billion.
Compared to May 2019, public construction spending was up 4.9%. The most significant contributor on a percentage basis to the increase during that past 12 months, is construction spending for public safety, which was $14 million, 44.2% above the $10 million for the same period in 2019. Also contributing to public spending growth in May from the previous month is Highway construction, which was at a seasonally adjusted annual rate of $107 billion up 2.8% from the revised April estimate of $104 billion.
More information may be found at: https://www.census.gov/construction/c30/pdf/release.pdf
On July 1st, the District of Columbia (DC) Office of Paid Family Leave (OPFL) began working with employers and workers to administer the paid leave benefits under the DC Paid Family Leave Act (the Act). The Act is an insurance program that governs whether a worker will be eligible for paid leave benefits.
The Paid Leave Act provides up to 8 weeks to bond with a new child, six weeks to care for a family member with a severe health condition, and two weeks to care for your serious health condition. Employees may take any combination of family, parental, and/or medical leave up to the limits stated in a 52-week period. The Paid family leave may be taken intermittently; however, the combined leave total may not exceed eight weeks in the 52 weeks.
A qualifying business is any business performing services in DC that pays unemployment insurance (UI) taxes for its employees. Once an employer has paid UI tax for one fiscal quarter for their worker, they will automatically be recognized as a covered employee for paid family leave. The paid leave benefits are paid by the DC government and funded by a quarterly employer payroll tax.
The OPFL will be hosting outreach and engagement events that include the Paid Family Leave webinars on:
Thursday, July 16, 2020
1:30 – 2:30 p.m. EST
Thursday, July 30, 2020
1:30 – 2:30 p.m. EST