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Federal Labor Standards in Government Contracts

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Federal Labor Standards in Government Contracts

Contracting with the Federal Government is not like a business deal between two companies or a contract between a consumer and a commercial contractor. Thus, advising a Government contractor is not like advising another business client. This course will focus on how the Government uses its contracts to further its socio-economic agenda-from affirmative action and equal employment opportunity to prevailing wages and fringe benefits to incentivizing vaccination against COVID-19. This course also will discuss the risks for contractors that do not understand their legal obligations.

Transcript

Hello, my name is Shlomo Katz. I'm an attorney in the law firm of Brown Rudnick LLP, where I practice both government contracts law and lead the firm's wage and hour practice. The topic today is the intersection of those two subjects government contracts and labor law. As we talk about the federal contractors Introduction to Employment Law Compliance. Some of the things we will talk about today are how and why the US government uses contracts to further a socioeconomic agenda, such as by imposing labor law requirements on government contractors. What laws executive orders may apply to your government contracts or your clients government contracts? Since most of you listening to this will probably be attorneys? And how do you know what requirements apply? What do these laws and executive orders require? How do contractors comply with these requirements and what are the penalties for not complying? So let's start with the first question, which is how and why does the US government use contracts to further a socio economic agenda? As you can see here, there are a number of. Federal labor standards laws that apply specifically to government contractors. For out of the five laws on this slide are such laws, and we'll go into them in more detail. Come a long time ago. In the 1930, the US Supreme Court established the principle that doing business with the government is a privilege, not a right. And therefore the government has the right to impose requirements as it sees fit on its contractors. That may not apply to other businesses. And the result is the laws that we will be talking about today, which the government sees as an opportunity to further socioeconomic agenda by making at least some employers follow observe these laws as a quid pro quo for the privilege of having government contracts. The first of these was the Davis-Bacon Act, which was enacted in 1931. Davis and Bacon were two members of Congress who proposed and and pushed this law. What was happening at the time was, of course, this was during the Depression, the height of the Depression. And the government saw or Davis and Bacon saw that contractors were competing for government contracts at the expense of their workers. Davis-bacon Act refers specifically to apply specifically to construction contracts and construction contracts. Typically historically, maybe less so nowadays. But historically, the government would give the or the the owner, whether it was a government or not, would would give potential contractors a set of specifications and drawings and say, how much will you charge me to build this building? And one contractor will bid $1 million. Another contractor will bid $900,000. Another contractor will bid $800,000 and the low bidder will get the contract. The the way that contractors were getting their bids down was by paying lower and lower wages to workers. And so Davis and Bacon pushed through Congress the Davis-Bacon Act, which establishes prevailing wages and fringe benefits for construction workers working on US government contracts and thereby prevents. Offerors, as they are called. Bidders. From being the low bidders at the expense of their employees wages. If they want to reduce their profit rate, they want to find some innovative way to do the work. Then they can reduce. They want to find a bargain on steel or bricks. Then they can lower their prices, but they cannot lower their prices at the expense of workers because the contract will tell them what the prevailing wages and fringe benefits for the workers are. In 1935, Congress passed a similar law relating to supply and manufacturing workers called the Walsh-healey Act. In 1938, Congress passed the general minimum wage and overtime law, the Fair Labor Standards Act. This is not a government contracts law, although it has very important implications for government contractors, and it's the general minimum wage and overtime law that says that workers are either exempt or nonexempt. If they're nonexempt, they're entitled to the minimum wage and overtime if they work more than full time and a half pay for overtime, if they work more than 40 hours in a workweek. And this applies whether you're a government contractor or whether somebody is flipping hamburgers at McDonald's or choose your favorite fast food restaurant or a janitor in a hospital anywhere. And almost almost all workers are covered by this. Not 100%, but but almost all jump way ahead to the 1960s and two more laws were enacted in 1962. The contract Work Hours and Safety Standards Act, which. Requires overtime pay for certain workers on government contracts. It does not really require anything that the FLSA doesn't already require, but it has additional penalties for failure to pay overtime to covered workers on a government contract. And then in 1965, as the US economy shifted from being a manufacturing economy to being more of a service economy, and that's even more true today. The Service Contract Act came along in 1965 and established prevailing wages and fringe benefits for service workers. And this applies to contracts for any kinds of services janitorial services, accounting services, airplane repair, overhaul, architectural services, you name it, any kinds of services. Now, there are workers who are exempt, and that's one of the areas where going back to the Fair Labor Standards Act of 1938, where it influences government contracts because certain workers who are exempt from the FLSA are also exempt from the Service Contract Act. Another way that that the government imposes labor related requirements on government contracts is through executive orders. Typically, these are things that the President cannot push through Congress for all workers, but using his power over government contractors because he's the customer, essentially, he can issue an executive order saying that you want a government contract, you're going to have to comply with certain things. Most of what you see on this slide, slide number four is relatively recent, but Executive Order 11 246 goes back to President Lyndon B Johnson in the 1960s. And it is really the executive order relating to government contracts that has that has survived the test of time as opposed to all the others you see here, which I'll explain in a minute. So Executive Order 11 246 requires equal employment opportunity. It also requires affirmative action plans in certain cases, primarily government construction contractors. But the equal employment opportunity applies to all contractors. This has been amended many times. Uh, by both Republican and Democratic presidents to expand it further and further. Are now mentioned Democratic and Republican presidents, because there's something you need to understand about these executive orders. And it certainly is not my intention here to sound political in any way, but simply to give you facts that are important to understand in order to understand any of these executive orders, how these executive orders work, for the most part, starting with President George H.W. Bush, the first President Bush. Republican presidents on the one hand and Democratic presidents on the other hand, each have their favored set of executive orders. And President Bush issued certain executive orders relating to government contracts, primarily being Republican. Their intention was to ease the burden of labor law on government contractors. When his. When he was defeated by President Clinton and President Clinton became president, he issued a different set of executive orders, very similar to what you see here, which were, for the most part, pro-labor as Democratic presidents tend to be. Eight years later, President George W Bush replaced President Clinton. He within the first week of being in office. And the same thing with President Clinton in relation to the first President Bush. Within the first week of being in office, he rescinded his predecessor's executive orders and George W Bush put back in the executive orders of his father, George H.W. Bush. When his term ended and President Obama came into office, he rescinded President Bush's executive orders, put back President Clinton's executive orders. And this is the general pattern. President Trump was a bit of an exception in that he did not rescind all of President Obama's executive orders. And therefore, some of what you see here, the ones that start with the number of 13, those are from President Obama. The ones that start with number with the number 14 are from President Biden. That numbers the numbers have nothing to do with the president. It just happens to be their consecutive starting with guess President George Washington issued executive order number one and they just continue in order. So the and the names sometimes are deceptive because they're meant to to sound like they're. Uh, accomplishing something noble, which may or not may not be the case, depending on your perspective. But Executive Order 13 for nine for economy and government contracting actually is an executive order that prohibits using any federal funds to influence union elections, primarily to influence employees, not to vote against for for unionizing. Executive Order 13 496 Notification of employee rights under federal labor laws is exactly what it says. It's meant to make sure that employees are aware of their rights. Executive Order 13 658, establishing a minimum wage for contractors that established that government contractors have to pay a minimum wage of $10.10, which increased every year. Every January 1st it increases. And this is an example of where the president would have liked Congress to increase the minimum wage for everyone, but Congress wasn't cooperating. And so the president used his power over government contracts to at least increase the minimum wage for employees of government contractors. Executive Order 13 665. Non retaliation for disclosure of compensation information prohibits employers from. Prohibiting their employees or punishing their employees for discussing their wages. The theory being that employee employers are able to discriminate against women or minorities by telling employees you're not allowed to talk about how much you earn and therefore nobody will know how much anybody else earns and it will be easier to discriminate. That's the theory, anyway. Executive Order 13,706 Establishing paid sick leave for federal contractors. Exactly what it says. It requires that. That employees working on or in connection with a government contract, meaning not necessarily they're working directly on the contract, but even a little more remotely, only in connection with the government contract. Be given one hour of paid sick leave for every 30 hours, worked up to 56 hours a year. It's more complicated than that. But that's the the general idea. President Biden issued a new minimum wage executive order which increased the minimum wage to $15. And now January 1st, 2023, it's $16.20. That's a big jump over what it would be if only President Obama's executive Order 13,648 was in place. An Executive Order 1405 five non displacement of qualified workers under service contracts requires employers. If I win a contract from you, you were the predecessor and I win the contract, I'm required to offer your workers jobs with certain exceptions and limitations and caveats. But that's essentially it's a right of first refusal to qualified workers under service contracts. And this is. This is an executive order that that President Clinton issued. And then it was actually. Thrown out by courts. And then President Obama issued it and then it was rescinded and then President Biden issued it again. Now we're going to talk in more detail about some of these laws and executive orders. So let's start with the Davis-Bacon Act, which is the oldest. It applies to federal and federally assisted contracts in excess of $2,000. The words federally assisted means that it is broader than just government contracts. If if I am a developer of townhomes and I get a grant for apartments and I get a grant from the Department of Housing and Urban Development to help me build low income housing. It's not a government contract, but it's federally assisted. If the county builds a road and receives $2,000 or more from the federal government to help build that road, the Davis-Bacon Act applies. And there are. There's something called the Davis-Bacon related Acts, and there are dozens of them. Laws that are not don't involve federal contracts, but involve federal assistance for construction work. Uh, the latest of these is the Inflation Reduction Act that passed through Congress this earlier this year and was signed by President Biden, which provides federal assistance for clean energy projects. And so the Davis-Bacon Act will apply that federal assistance in most cases is in the form of tax credits. It's not even getting a check from the federal government. In the case of the Inflation Reduction Act or tax credits for clean energy projects, that's considered federal assistance and the Davis-Bacon Act will apply. So it has to be a federal or federally assisted contract in excess of $2,000 for construction, alteration or repair, including painting and decorating. Now, we'll talk about this a little later. Painting and decorating and repair the fine line between whether that's construction or services and whether Davis-Bacon Act should apply or the Service Contract Act should apply. So we'll we'll get to that a little later. It must be of a public work. There's a substantial amount of litigation of what is a public work, for example. Uh, in in Washington, DC, a few blocks from my office, there was a very large hotel, retail and apartment complex. In fact, President Obama's Attorney general, Eric Holder, bought a condo in that complex. It was on land that was owned by the government. The District of Columbia government and the the Labor Department claimed that that was it made it a public work. The fact that it was on public land. The courts disagreed, and that project was not covered by the Davis-Bacon Act. It only covers work performed at the site of the work. And so there is a lot of litigation about what is the site of the work? Is it the construction site? What about. What's called a concrete batch plant a quarter of a mile away where they mix concrete for the site of the work. Is that the site of the work? So a lot of discussion about that using laborers or mechanics. It did not apply to white collar workers involved in the contract, for example, inspectors and timekeepers. It also certainly does not apply to bona fide executive, administrative or professional employees as defined under the Fair Labor Standards Act. So there's another example of where the Fair Labor Standards Act. Is relevant to government contracts. We'll talk about another important aspect of the Fair Labor Standards Act as applied to government contracts later. So that's the coverage of the Davis-Bacon Act. What does it require? It requires payment of prevailing wage, which will be specified on something called a wage termination. And I'll show you an excerpt from wage termination shortly. The wage terminations are determined by the Department of Labor on a locality basis, using the weighted average of all workers in the locality in that job classification. The exception being that if there's a dominant union which represents more than 50% of workers of a type of worker in that location, then the union rate will be the prevailing wage. It also requires prevailing fringe benefits, which again depend on the locality and the trade. Some classifications receive little or no fringe benefits and some have very high fringe benefits. If they're based on a union collective bargaining agreement, the Davis-Bacon Act also requires that employers submit certified payrolls certifying that they have. Complied, which has led to a whole. Industry of lawsuits asserting that employers made false claims to the government when they certified that they were complying with the Davis-Bacon Act and they really were not. And they got paid by the government based on those certifications. And therefore their invoices were false claims. And there are many, many cases like that. So here you see on the right side of the page an excerpt from a randomly chosen wage determination. There are four types of Davis-Bacon wage terminations, as you can see in the red box on the left side, building heavy highway and residential. This is an excerpt from a building wage termination. You see the date and the the termination number said it's random. It's actually the first one in alphabetical order on the website, sam.gov. Sam stands for System for Award Management, and the website sam.gov is where you get wage determinations. Actually, they're supposed to be put in the contract by the contracting officer, but at least for reference purposes, you can you can get them there. It's a whole legal mess. When the contractor does the contracting officer, the government, the customer does not put a wage determination in. And then the question is, are you obligated to get your own? And there could be some factual variations there and it's a mess. So if your client has a construction contract that's federal or federally assisted or with the District of Columbia and it doesn't have a wage determination, the best thing to do is to talk to the contracting officer. You see here different classifications of workers, asbestos workers, heat and frost insulator. They have a prevailing wage of $29.65 and fringe benefits of $15.11. A boilermaker has a. Wage rate of 3049 and fringes of 2313. You can see these are substantial and it's much more than the minimum wage, and the fringe benefits could be substantial as well. And again, this is for this locality for building construction in this year. It different localities, different types of construction and different years will be different. Now, the Davis-Bacon Act is is unique or it's different from what we'll see later about the Service Contract Act. And that even though let me go back to the previous slide for a second, even though you see it says wages of 2965 and fringe benefits of 1511, they don't actually mean that. If you add those up, that adds up to. 4476. So as long as you're giving the employer, the employee $44.76 in wages and fringe benefits and you are paying at least a minimum wage, you're going to be okay. So if a hypothetical. Wage termination requires a a wage of $18 and fringe benefits of $4 for a total of $22. You could pay $22 in cash. You could pay $18 in wages and $4 in fringe benefits. Or you could pay the minimum wage of $16.20 in cash and $5.80 in fringe benefits or any other. Combination that involves at least the minimum wage of $16, which currently is $16.20 and reaches a total of $22, or in the case of the of the previous slide where I said it adds up to 4476. Any combination that adds up to 4476. Same thing for the boilermaker. That adds up to 53, 62 and so on. Okay, We're now on slide nine. Uh, that was the Davis-Bacon Act. Uh, now we'll talk about the Service contract Act, and then we'll come back and compare them a little bit more. Uh, the Service Contract Act applies to every federal government and District of Columbia. Also service contract in excess of $2,500. Here. There is not anything about federally assisted contracts, so it's only federal contracts and District of Columbia contracts in excess of $2,500, which of course, is all contracts. Now, you know, back in 1965, maybe $2,500 meant something, but now it's it's nothing. There are some statutory and regulatory exemptions and there's something called the 80% rule of thumb. So I mentioned before that, let's say an architectural services contract would. Be subject to service contract act. Now, architects typically will be exempt. Professional employees, as you see in the bottom half of the slide exempt employees do not need to receive the prevailing wage and fringe benefits. So a typical licensed architect. Is is going to be a professional exempt employee. But. And not covered by a service contract Act, but an architectural services contract will also require the work of draftsmen and CAD operators, computer assisted design operators and and other nonexempt employees. And so the 80% rule of thumb says that if 80% of the hours on the contract will be performed by. By exempt employees, then the Department of Labor will not enforce the Service Contract Act, even with regard to the other 20%. Now, there's an important caveat here, which is that. If the Service Contract Act clause will explain the clauses in a minute. But as a service contract act clause is in the contract, then it does apply to those 20%. So if you want to take advantage of the 80% rule of thumb, you have to be in touch with the contracting officer beforehand and assert that the Service Contract Act should not apply and the contracting officer has to not put the clause in the contract. The disadvantage there is that. When you are bidding or submitting an offer for a government contract, any question that you ask the contracting officer will be shared with all other offerors and bidders not in your name, but the question and answer will be shared. And sometimes by asking a question like this, Hey, I think that the 80% rule of thumb should apply. You may be telegraphing your technical solution to your competitors. Maybe they're thinking of a different labor mix for the particular contract, which. Which would require the Service Contract Act to apply. And when you ask the contracting officer, Hey, I think the Service Contract Act should not apply because 80% of the labor is going to be exempt. You're you're giving away your technical solution, which may hurt you competitively. So it's a something a contractor needs to decide, do I want to ask this question or not? It's just part of the strategy of my better off asking the question and getting the service contract act out of there, or am I better off keeping quiet even if it means I'll have to pay comply with the Service Contract Act for 20% of my workers? Service Contract Act requires prevailing wages. It requires health and welfare, fringe benefits. And unlike the Davis-Bacon Act, you cannot mix and match. So if it requires a wage of $20 an hour for some labor category or $40 an hour for some labor category, you need to pay that wage. And also the fringe benefits which are in the range of $4 and something. There are some variables, but they're all in the range of $4 and change. And actually around this time of year, the government, Department of Labor announces what they will be for next year. We probably can expect to see see them go up given the inflation rate. The Service Contract Act requires vacation pay. Paid vacation. And this will differ from wage termination to wage termination. Again, these are issued on a locality basis. So some wage terminations will say one week after one year of pay, two weeks after one I'm sorry, one year after one year of work. Let me try that again. One week of vacation. Some some wage terminations will say one week of vacation after one year of work, two weeks of vacation after five years of work. Others will say two years after three years of work. So you have to look at the wage termination and see holidays or holiday pay. And. The Wage Commission will list holidays, which again could vary from location, may also change from time to time. And that raises questions about. About whether you have to comply and give paid vacation for that holiday when a new holiday is is enacted. This happened most recently, about two years before this class was recorded. Congress enacted a new holiday, Juneteenth, and contractors needed to figure out, am I obligated to give Juneteenth as a holiday? And the answer typically was, Well, my existing contract has an old wage termination that does not mention Juneteenth. Therefore, I'm not obligated to give Juneteenth as a holiday until I get a new wage determination that does include Juneteenth as a holiday. And and when that happens, the contractor may be entitled to additional pay from the government to compensate it for that additional liability. Unlike the Davis-Bacon Act, the Service Contract Act does not require certified payrolls and. A point of confusion for many contractors. It has to do with the paid sick leave executive order. That is an independent requirement from the Service Contract Act. Contractors need to comply with both if they are both in their contract. And and there it causes some complications for contractors exactly how to comply with both how to account for vacation and paid sick leave. It became very popular in recent decades for employers not to offer separate vacation paid sick leave, but rather to offer paid time off which employees could use for any purpose they want. The enactment of the paid sick leave executive order makes that very difficult. I'm not going to bore you with explaining all the accounting rules of why that makes that difficult, but it does. And and contractors now really, if they're covered by the Service Contract Act and the paid sick leave executive order, they really need to have separate leave banks one for vacation and one for paid sick leave. On Slide 11, you have a on the right side. An excerpt from a typical. A typical wage determination service contract Act. Again, it's the first one in alphabetical order pulled off Sam.gov. Unlike the Davis-Bacon Act, where every wage determination surprises you as to what jobs are listed there because it's based on what the Department of Labor found to be prevailing in that locality. The Service Contract Act wage determination is the same format. It lists the same several hundreds of jobs for all localities. And when I say several hundreds, you can see here some of them have multiple levels counting. Clerk one accounting. Clerk two accounting. Clerk three customer service representative one, two and three, etcetera. There is a book called the Service Contract Act Directory of Occupations on the Department of Labor's website, which gives you the definitions of each of these jobs. So, you know, what is the customer service representative? One, How is it different than a customer service representative? Two and so on. And then you see on the right side the wage rates that need to be paid and those are minimums. Of course, it does not mean that a contractor is going to find a customer service representative willing to work for $13.15. And by the way, you see the asterisks there. Next to a lot of those figures. And that's because actually all of those figures are below the minimum wage of $16.20. So all of those people actually would need to get $16.20. The reason that the numbers there are there is because when the Department of Labor did its wage surveys, it found that the prevailing wages in this community, Autauga County, Alabama, or the Alabama counties of Otonga, Elmore, Lowndes and Montgomery, as you can see on the top, the prevailing wage for an accounting clerk, one in the in that geographical region was $14.17. But that includes non-government work. But the three asterisks tells you, hey, this rate is below the minimum wage, so you have to pay the minimum wage lower down after the several hundred job listings and wage listings on the wage determinations, you find the health, health and welfare rate, which you see is $4.80 per hour. But if you're giving sick leave, then it's $4.41 per hour. Well. And then about halfway down, you see vacation, two weeks paid vacation after one year of service, three weeks after ten years, four weeks after 20 years. And again, this is going to vary from wage termination to wage termination and then the holidays, a minimum of 11 paid holidays per year. New Year. Martin Luther King's birthday. Washington's birthday. Memorial Day. What? What what a lot of people call President's Day. The correct legal name for that holiday is actually Washington's birthday. Memorial Day, Juneteenth. Juneteenth, National Independence Day. That's the official name of the holiday. Then Independence Day, which is July 4th, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day and Christmas Day. You'll note that the day after Thanksgiving is not listed as a holiday here. But contractors do have the options of not giving these holidays and giving different holidays instead. So let's say somebody says, I'm not giving Columbus Day. I'm giving the day after Thanksgiving instead. That's fine. And likewise, I said Independence Day is July 4th, but if that would fall on a Saturday or Sunday, then it would be on Friday or Monday. And that's true for a lot of these holidays, too. So there are some twists to complying with this. The fringe benefits under the Service Contract Act. They can be bona fide fringe benefits or cash equivalents. In other words, you don't actually have to give, let's say, health insurance. You can. You can. Uh, give cash instead. Now, when the Affordable Care Act was enacted under President Obama, that complicated this notion of giving cash equivalents. But as far as a service contract act is concerned, you could give a cash equivalent, bona fide fringe benefits include medical hospital life and other insurance pension benefits, but only the employer's contribution, not the employees contribution, disability benefits. Again, all of these, though, are only. The what the employer is paying. If the employee pays premiums for medical insurance or life insurance or disability benefits, that does not count as a fringe benefit. Only the employer's out of pocket costs for the benefit received by the employee. But not what the employee paid in benefits required by law. For example, Social Security or minimum required workman's comp are not bona fide fringe benefits. And this is important. The employees pay stub needs to have a separate line for fringe benefits. So the Department of Labor comes along and audits someone and says, you didn't pay fringe benefits and you say, What do you mean? I paid $5 more than the prevailing wage that they're going to say, That's very nice of you, but you didn't pay fringe benefits. So it needs to be a separate line on the pay stub. Uh, there's a concept called conformances, which is that even though there are several hundred jobs on the wage termination, but there are jobs that are not on the wage termination, and if that happens, you need to go through a process called a conformance. And there are a couple of different ways to do this process. Ultimately, it has to be approved by the Department of Labor. It's also something that somebody who's bidding on a contract wants to do informally when bidding because. We'll talk about later. A major part of many contracts is the labor. And if you don't price the labor correctly, you're going to lose money. And so you'll need to walk yourself through a conformance process. You cannot submit it to the Department of Labor when you're bidding on the contract. Only contractors can actually do an official conformance, but you need to walk through the process in order to bid the contract properly. On the bottom, you see, subordinate classifications are not permitted, intermediate classifications are not permitted. What that means is we saw before there's a, for example, accounting, accounting clerk one accounting clerk, two accounting clerk three You cannot say, well, my accounting clerk does some of the duties of a one and some of a two. So I'm going to conform a one and a half. That would be an intermediate classification. You cannot do that. Subordinate classification would be an accounting clerk. Half can't do that either. A hybrid classification would be, let's say I actually had a case like this where my client had had a contract to deliver mail on an Air Force base, and on days when weather permitted, the mail delivery, people walked. On days when the weather did not permit, they drove and Department of Labor came in and my client was classifying these male clerks as general clerk one or general clerk, something. I don't know what number, general clerk. And there there was no there was nothing on the wage termination for male clerks. So they were classified as general clerks. Permanent labor came in and said, well, we don't have a problem with classifying male clerks as general clerks, but they're driving. They should be classified as drivers. And we said they're not drivers. They drive because the weather is bad, but they're male clerks. They're general clerks in the Department of Labor said, no, they're drivers. And eventually we settled the case by saying. They were 76%. General Clarkson, 24% drivers. And we paid back wages based on that to get. In other words, 24% of their hours. The wage rate was upped from a General Clarke rate to a driver rate. So that's a hybrid classification and the Department of Labor will sometimes agree to that to settle a case looking backwards. But you cannot conform that going forwards. So what my client had to do going forwards, it had three options. One is to keep careful track of the hours when these workers are working or driving or not driving, and to pay the driver rate for the hours when they're driving and the General Clarke rate for the hours when they're not driving. That's one solution. The second solution is to make sure you have different people doing the two jobs and pay the driver the driver rate and the clerk the clerk rate. And the third solution is always to pay the higher rate just to pay them the driver rate all the time. That's obviously not a very good solution business wise, whether you already have the contract at a fixed price and now you're going to be eating into your profit by paying a higher rate or whether you're bidding on the contract and you want to keep your price down for bidding purposes. So that's not the best solution. Under the Service Contract Act, there's something called the Successorship obligation. This is sometimes referred to as Section four C, because it was section four C of the original Service Contract Act. And it says that if the predecessor, contractor, contractor had unionized employees, then the successor contractor in the first year of the contract at least has to pay the wages and fringe benefits that are in the CBA. This does not make the successor a party to the CBA. That only happens if the successor signs the CBA, but it does not make all of the CBA provisions like the grievance procedures apply to the successor contractor. Only the economic provisions, the wages and fringe benefits. So. Let's say that the CBA has a fringe benefit that's not prevailing in the community. Maybe they'll. The union agreement says that the employer will pay for one class a year at the local community college. That's a fringe benefit. The successor would be obligated to maintain that fringe benefit, at least for the first year of the contract. Whether it would continue beyond the first year of the contract depends on whether the contractor actually becomes a party to the CBA. When it says in the first sub bullet includes prospective increases, that refers to increases that occur in the first year of the contract. So if there's because the contract year. Most often contracts run from October 1st to September 30th, which is the government's fiscal year. Let's say that the CBA has a wage increase on January 1st. The successor contractor would have to give that wage increase on January 1st. And therefore, if you're bidding on a contract where the workforce is unionized, you should be asking or your client more likely should be asking the contracting officer for a copy of that CBA so that they know what they're bidding, too. Again, if you don't know what you're paying your labor, you cannot possibly price your contract correctly and make a profit. Six. Excuse me. Contractors can be entitled to price adjustments every year or in some contracts every two years. The contracting officer will incorporate an updated wage determination, which increases wages and fringe benefits and under. In theory, under a contract clause known as the price Adjustment clause, the contractor is entitled to a price increase even on a fixed fixed price contract is entitled to a price increase when the wages and fringe benefits go up by saying theory because there are nuances to it. But but that's what's supposed to happen. That adjustment is limited to increases attributable to wages and fringe benefits and accompanying increases in legally required employment taxes like Social Security or Social Security. A 6.2%. So if you increase the wages, then the 6.2% of that is more. But the adjustment will not include profit and overhead as it would for other changes to the contract. The. So now let's go back and compare a little bit more the Davis-Bacon Act and the Service Contract Act. The Davis-Bacon Act applies when the activity is part of a construction contract. So let's say landscaping. If I have a contract to do landscaping and that that's part of a new office complex that's being built, that landscaping work is going to be covered by the Davis-Bacon Act, as opposed to if I have a landscaping contract to. Do the regular upkeep of the grounds of an existing building that's going to be covered by by the Service Contract Act. The same thing goes for, you know. Maintaining carpets and and janitorial work and and painting, maintaining elevators. You have to look at whether it's routine work to keep something in a working state, you know, to keep the elevators working or whether it's actually construction work. Now, you could have, you know, if you're installing a completely new elevator in an existing building, that could be construction work, too. So there are, again, nuances to that, not to I don't want to oversimplify, but to need to move on. Both the Davis-Bacon Act and the Service Contract Act. Borrow from the Fair Labor Standards Act, the concept of working time. If I need to pay prevailing wage and fringe benefits for hours worked, I need to know what are hours worked. And the standard is it sounds like it comes out of Shakespeare, but it doesn't. It comes from the Supreme Court. Is that work not requested but suffered or permitted is working time. For example, preparing tools for work, changing clothes if required due to nature of the work, if it's weather, it's radioactive work, or it's processing chickens or it's construction work that requires, you know, safety equipment that you would not wear when you're commuting. My basic test is if you could wear this on the subway, going to work, then it's then it's regular clothes. If it's something that you must put on when you get to work and take off when you leave work, then it's probably that clothes changing. Time is probably working time. Uh, the. Now another thing which is work not requested, but suffered or permitted is work that the employee does at home. If employee takes work home, you can't just say, Hey, I'm not paying for that because I told you not to take work home. There are various categories of working time that, you know, if we if this was a class about specifically about working time, we would delve into in great detail. Waiting time on call time, rest periods, meal periods, sleeping time, travel time, training time. There are four different kinds of travel time that we can talk about. For example, sleeping time. When is a worker entitled to be paid for sleeping and when not? And and what is the definition of a meal meal period? Federal laws do not require meal periods. Many state laws do, which is an opportunity. But but federal law defines what is a meal period such that you don't have to pay for it. This is an opportunity to point out that all of these laws that we're talking about are minimum requirements If a state law requires more. So let's say the federal minimum wage is $16.20 if there is and I don't know if there is, but if there is a state where the minimum wage is $18, you'd have to pay that. If there's a state and there are many states that require meal periods, you've got to give meal periods, even though federal laws don't require them. Okay. What are the biggest mistakes employers make when it comes to determining what is working time? I think it's these four. I told her not to work overtime so I don't have to pay for it. That's wrong. If if the employee worked overtime and you knew or should have known, you have to pay for it. My client won't reimburse us for overtime, so I don't have to pay for it. This comes up under a lot of government contracts where the contract says we will not pay, the government will not pay overtime rates. So contractors sometimes think mistakenly that well means I don't have to pay overtime, that that's not true. The Department of Labor couldn't care less if the government is paying you or not. And the law says that if a non-exempt employee works overtime, you have to pay time and a half the regular one and a half times the regular rate doesn't matter if the government is reimbursing you or not. So you better manage your workers better. If he were more efficient, the job would take fewer hours. So I don't have to pay. Wrong. If the person's not efficient, you could reassign the person. You could fire the person. You could give the person more training, but if the person worked, you better pay for it. I told them not to take work home so I don't have to pay for it again. That's wrong. Both the Davis-Bacon Act and the Service Contract Act have have a number of penalties. The contracting officer can withhold pay when ordered by the Department of Labor, withhold pay from the contractor and give it to the Department of Labor to give the employees instead. And by the way, the Department of Labor can order the contracting agency to withhold money from the prime contractor if the subcontractor is violating the Service Contract Act or Davis-Bacon Act. Government can sue you. Your workers cannot sue you, but they can find ways around it, such as I mentioned, to bring a false Claims Act suit. Sometimes that's successful, sometimes not. Are a contractor that violates these laws can be disbarred, meaning excluded from government contracts. In the case of Service Contract Act, it's a three year exclusion and it's almost automatic. So when you're whether you're litigating or you're settling, you need to know how to get out of that because that's, you know, that could kill a business to be excluded from government contracts for three years. There are ways around it. Contract cancellation or termination for default, the prime contractor can be financially liable for the failure of the subcontractor to pay in accordance with these laws. And as I mentioned, there are potential qui tam suits for false claims. Qui tam suits means that the employee or someone else who knows about it brings a lawsuit on behalf of the government against the contractor. And if that lawsuit is successful, the person who brought it can take home up to one third of the damages. So it can be very lucrative for plaintiffs and plaintiff's lawyers. Uh, the, uh, talk a little bit about the executive orders and time that we have left. So I mentioned the Executive Order 11 246, which is goes back close to 60 years and has withstood the test of time. It does it's not has not been a victim of the ping pong between Democratic and Republican presidents. It's something everyone can agree on that there should not be discrimination in when hiring workers for government contractors and in some cases. Uh, it requires actually writing an affirmative action plan. In other cases, it doesn't, but it does require offering equal opportunity and not not discriminating in employment decisions. Uh, so. As I mentioned, there's there was the executive order that prohibited. Stopping employees from discussing their wages. And that actually was an amendment to executive order 11 to 46. So you see that here on Slide 23. Paid sick leave applies to contracts resulting from solicitations issued after January 1st, 2017, which is by now just about 100% of contracts because contracts typically are for five years and now we are six years after that. Employees on covered contracts must be permitted to earn not less than one hour of paid sick leave for every 30 hours worked. You may not. Limit that to anything lower than 56 hours and it must carry over from the sick leave if it's not used, carries over. And if the employee leaves and is rehired within 12 months, it needs to be reinstated. But you can limit the the amount banked at 56 hours. So if I accrue 56 hours and I don't get sick, you can stop. You can say, hey, you're not accruing any more until you get sick and use the 56 hours or use some of them. As soon as I use one hour, I get another hour. If I work more now, it's not just for being sick. Employees may use paid sick leave for an absence resulting from physical or mental illness, injury or medical condition. Also, diagnosis and preventive care. And not just for oneself, but also for a child, a parent, a spouse, domestic partner. And this is this is a tough one or any other individual related by blood or affinity, whose close association with the employee is the equivalent of a family relationship. Which means essentially if I have a best friend who's like my brother and I need to accompany that person to a doctor, I could use my sick leave and the employer's not really allowed to ask questions about this unless there's evidence of abuse. It's really an honor system and the employer is not allowed to ask too many questions. There are rules that allow for requiring doctor's notes and after a certain amount of absence and so on. The other thing that employees can use paid sick leave for, which is not what you would traditionally think of as sickness, is absences resulting from domestic violence, sexual assault or stalking. And that includes getting medical attention, getting counseling, seeking relocation, seeking assistance from victim services organizations, going to court as a witness or as a party, whether civil. Court or criminal court or assisting an individual who's doing any of the above things. So it's very broad. What the sick leave can be used for. President Biden issued Executive Order 1426, increasing the minimum wage for federal contractors, which establishes a higher minimum wage. As I mentioned, it was $15. Now it's $16.20. Next January 1st, it will undoubtedly go up again. How do you know if this is in your contract? Well, you have to look for the contract clause. There's something called the Federal Acquisition Regulation. You see in the second bullet there, FA stands for Federal Acquisition Regulation, and that's the clause number 52.222. Dash 55. Minimum wage is for contractor workers under Executive order 1402 six and the clause is dated January 20th, 22. And this applies to everything we've talked about until now. How do you know if it's in your contract? The answer is you look for the FA clause. If it's a service contract, act for example, it will be FA clause 52 .22241. If it's the sick leave, it will be fa 52 222 dash 62 if I remember correctly. I'm sorry, I may not have that number right, but it will be 50 2222-6 something. Something in the range of 59 to 62. And they're listed in the contract in order typically. So you can look, but it's not always in order. So you do have to to look more carefully. Uh, if this clause is not in your contract, for example, because your contract was awarded before January 2022, then you're not subject to this. So you have to look at the contract to see what the clauses say, to see what you, what you or your client is subject to. As I alluded to, all of these things, not only are they compliance issues, they're also issues when it comes to preparing a proposal for government contract. So you need to come up with your technical solution or your client again, needs to come up with a technical solution for performing this contract, whether it's a construction contract or a services contract price. Figure out what the labor mix is going to be. Figure out which employees are exempt versus non-exempt. And of course, there are rules. This is an area where there is a lot of misunderstanding. People say things like, I'm salaried so I don't get overtime. That's wrong. That is a misunderstanding of the law. Being salaried, being highly paid, being very important, those things do not make you exempt. There are exemption tests in Title 29 of the Code of Federal Regulations Part 541. That's where you find the exemption tests. And and either you meet them or you don't meet them. So that's all going to factor in to whether these labor laws apply and therefore how you price the labor of your contract should you escalate your wage rates for the out years or not? Well, it depends. If the contract is going to include the clause at far 52.222 43, which is the Service Contract Act price adjustment clause, then you should not include escalation for non-exempt. I'm sorry, Yes, for non-exempt workers. If it's going to include the clause at far 52 to 22 dash 43, which is the price adjustment clause, then you should not include escalation for non-exempt workers, but you should include escalation for exempt workers because they're not covered by the service contract as Act or by that clause. You need to identify the labor categories to be used and figure out if conformances will be necessary. You need to price in sick leave and you need to figure out whether you need to make offers to incumbent employees. So all of these things influence the contractor's behavior even before getting the contract, just preparing the proposal. And in a way that will be profitable. What are some best practices for contractors? One is that the contractor or any employer, not just a government contractor, can reduce the likelihood of being investigated by a Department of Labor by listening to employee complaints, both formal complaints and grapevine complaints, informal complaints. What you hear people talking about over the water cooler, that does not mean caving in to any complaint, any and every complaint. It means listening, discussing, thinking about whether there's a valid grievance and how you can address it in a way that satisfies both the. Well, three things. One is the law. Two is the employee is. Needs and desires which may be different than the law. And three is the employers. Need to be profitable. So listening is very important and an employee who is happy is less likely to complain to Department of Labor than an employee who is not happy. Second thing is that employers, whether government contractors or other employers, should have regular compliance self-audit programs before being investigated. When I when I do a wage, our self audit or audit for a client, I look at things like are they making proper exemption decisions? Are they making proper decisions about whether an employee is an employee or an independent contractor? That's a hot area for Department of Labor and for employees. Are they making proper decisions whether an employee is exempt or not? Are they calculating overtime properly? Are they calculating fringe benefits under the service contract Act properly, and so on? It's not enough to have great policies. You need to train your managers, teach them what's allowed and what's not allowed and what's proper and not proper and what's good and not good. Keep accurate records. Do not destroy records or create new records in most cases other than certified payrolls under department under the Davis-Bacon Act. There are not specific forms for records. You can keep your records on a paper napkin written in crayon. If you want. But that's going to make it a bit challenging to provide those records to the Department of Labor if you are audited and to maintain those records for the record retention period required by your contracts and by law. Cooperate with the Department of Labor. Being investigated by the Department of Labor is not a criminal proceeding. It does not require a search warrant. Not that anybody would think of doing this, but it is a specific federal crime to assassinate a Department of Labor investigator. But they're generally very nice people who are just doing their job. And and you're better off cooperating with them or your clients are better off cooperating with them. That doesn't again, that does not mean giving in to everything they say. And there are appropriate times to get legal help and push back, but in a nice way. The Department of Labor will hold an exit conference and that's where you can assert your defenses. Don't sign anything. Tell your clients not to sign anything until because once they sign, they're admitting that they're agreeing they're going to pay whatever the back wages the Department of Labor is demanding, and they may not want to do that. Uh, they should be open to negotiating with the investigator or the investigator superiors, especially when the facts or law or law are unclear, which is often the case. So there you have it. That's the overview of employment law compliance for government contractors. Obviously, there are lots of laws that apply to all employees and all employers that apply to government contractors. Also like the Family and Medical Leave Act, the Americans with Disabilities Act, Title seven of the Civil Rights Act, and so on. Those are not specific to government contractors. I'm more than happy to hear from anyone who has any general type of questions after after listening to this class or feel free to contact me to get a copy of my Subcontract Negotiation Quick Reference Guide. Thank you very much for listening. Have a wonderful day.

Presenter(s)

SK
Shlomo Katz
Counsel
Brown Rudnick

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