Proposed Minimum Wage Regulations for Federal Contractors Released

Editor’s NoteIt’s a TLNT holiday tradition to count down the most popular posts of the year. This is No. 3. Our regular content will return on Monday.

By John E. Thompson

The U.S. Department of Labor has released its proposed regulations implementing Executive Order 13658, President Obama’s directive to raise the minimum-wage rate for workers on federal contracts from $7.25 per hour to $10.10 per hour (subject to annual increases after 2015).

We wrote about this initiative earlier in the year; we will not repeat those discussions here.

Identifying all ramifications of the 181-page Notice of Proposed Rulemaking will necessitate a careful review. However, at least some ambiguities of the Executive Order itself appear to have been clarified.

Contract coverage, required clauses

Generally speaking (and subject to some exceptions), the proposed regulations will apply to “new” contracts and “contract-like instruments” (including replacements for expiring contracts) arising on or after Jan. 1, 2015 and falling into one of four general categories:

  • Procurement contracts for construction covered by the Davis-Bacon Act itself (but not those subject only to the Davis-Bacon Related Acts);
  • Most service contracts covered by the Service Contract Act;
  • Concessions contracts” granting the right to use federal property to provide services for the principal purpose of furnishing food, lodging, automobile fuel, souvenirs, newspaper stands, and/or recreational equipment; and,
  • Contracts involving leases of federal property and licenses to use such property for the purpose of offering services to the federal government, to its personnel, or to the general public.

Covered contracts and subcontracts must include certain clauses incorporating the requirements of the Executive Order and the regulations. These proposed clauses are included in the NPRM’s Appendix A.

What is a covered “worker?”

The Notice of Proposed Rulemaking says that a “worker” entitled to the Executive Order’s minimum wage will be one:

  • Who performs “on or in connection with” a covered contract (that is, one who does the specific things called for in the contract as well as one whose work is “necessary to the performance of the contract”); and,
  • Whose wages under the contract are governed by the federal Fair Labor Standards Act, by the Davis-Bacon Act, or by the Service Contract Act.

“Worker” is used in a broad sense, including that the Department of Labor says the term is intended to sweep-in those who would not otherwise be “service employees” under the Service Contract Act or “laborers or mechanics” under the Davis-Bacon Act.

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The proposals could also be read as attempting to dispense with the Davis-Bacon Act’s limitation to activities performed “directly on the site of the work.” And because the scope of the term “worker” will be applied without regard to “the contractual relationship alleged to exist between the individual and the employer,” it will not matter to the Labor Department that a person is said to be an independent contractor.

However, the Executive Order and the regulations will not apply to individuals who are employed “in a bona fide executive, administrative, or professional capacity” within the meaning of Labor Department regulations found at 29 C.F.R. Part 541.

The Bottom Line

There is much more to the Notice of Proposed Rulemaking than those points we have highlighted above. Any comments, suggestions, or criticisms must be submitted to Department lot Labor not later than 30 days after the proposed regulations appear in the Federal Register.

Every employer who is or might be affected by these provisions should immediately review the publication in detail and should make management’s views known within the 30-day time frame.

The proposed regulations have now been officially published in the Federal Register. Comments, suggestions, or criticisms must be submitted by July 17, 2014.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.

John Thompson is a partner in the Atlanta office of the law firm Fisher & Phillips. His practice focuses on wage and hour law, assisting employers in preventive efforts designed to ensure compliance, and he handles both investigations conducted by government agencies and litigation in the wage and hour area. John has served as a Special Assistant Attorney General for wage-hour matters for the State of Georgia. Contact him at jthompson@laborlawyers.com.

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