001 Cover.pmd Employment Law Guide

User Manual: Pdf

Open the PDF directly: View PDF .
Page Count: 114

Download
Open PDF In Browser	View PDF

Employment Law Guide
U.S. Department of Labor
Office of the Assistant Secretary for Policy
Revised April 2003

Foreword

We at the Department of Labor believe that workers are best protected when employers,
employees and the government work together to protect wages, benefits, pensions,
safety and health.
To this end, we have developed a Department-wide initiative called Compliance
Assistance, which envisions a cooperative approach toward all stakeholders, especially
small businesses. Compliance Assistance complements our aggressive enforcement
of the nation’s worker protection laws.
We have developed a number of compliance materials in plain language, including
on-line resources, which help answer questions and make our regulations easier to
understand. The Employment Law Guide, which is available in both English and
Spanish, is one of these Compliance Assistance tools.
We hope that, through use of this Guide, you will be better equipped to comply with
our worker protection rules and regulations. Through this publication, as in all of our
compliance assistance efforts, our goal is to better protect workers by helping both
employers and employees understand our legal standards and meet them.

Elaine L. Chao
Secretary of Labor

Preface to the Printed Edition
The Employment Law Guide began as a Web-based document. In that
version, the Table of Contents includes certain chapters under more than one
topic heading so that the information in those chapters can be accessed in
more than one way. We have retained this structure for this Guide so that
the two versions will be as similar as possible.
If you have access to the Web, you can go to www.dol.gov and access the
home page of the organization within the Department of Labor that has jurisdiction
over the matter under discussion, and obtain the address and telephone number
from that page.
If you do not have Web access, or if you simply prefer to obtain this information
by telephone, please call the Department’s toll-free information service at
1–866–4–USA–DOL (TTY: 1–877–889–5627). The Customer Service
Representative can provide you with contact information for all Department
of Labor offices.
Likewise, you may find references to the text of various laws and regulations
as you read the Employment Law Guide. Here, too, you may wish to consult
the Department’s Web site, if you have access to the Web. Otherwise, you can
obtain the text of the various laws and regulations at any law library, and at most
public libraries, either directly or through inter-library loan.

iii

Employment Law Guide:
Laws, Regulations, and Technical
Assistance Services
Office of the Assistant Secretary for Policy
Preface
This Guide describes the statutes and regulations administered by the Department of
Labor (DOL) that affect businesses and workers. The Guide is designed mainly for
those needing “hands-on” information to develop wage, benefit, safety and health,
and nondiscrimination policies for businesses in general industry.
Read the overview first to find out which requirements apply to your business. For
each requirement, the overview references the relevant Department of Labor agency.
Employers in certain industries (for instance, agriculture) will be advised to contact
specific offices of the Department of Labor for further information.
Each chapter lists the telephone number of the Department of Labor agency that
administers the laws and regulations addressed in that chapter. If you have any
difficulty contacting a DOL agency (for instance, due to a telephone number that has
been changed), or if you need referral information on any topic within DOL’s purview,
call the Department’s toll-free service at 1–866–4–USA–DOL (1–866–487–2365).
The Employment Law Guide is offered as a public resource. It does not create new
legal obligations, and it is not a substitute for the U.S. Code, Federal Register, and
Code of Federal Regulations as the official sources of applicable law. Every effort has
been made to ensure that the information provided is complete and accurate as of
the time of publication and this will continue. Later versions of this Guide will be
offered at www.dol.gov/compliance or by calling our toll-free service at the number
noted above.

Small Business Regulatory Enforcement Fairness Act of 1996
You should also be aware that the Small Business Regulatory Enforcement Fairness Act
of 1996 (SBREFA) places obligations on federal agencies and provides rights to small
businesses. The Department of Labor’s Office of Small Business Programs oversees
the Department’s SBREFA activities. You may also obtain information on SBREFA from
the Small Business Administration (SBA).
Under SBREFA, the SBA has established an SBA Ombudsman and SBA Regional
Fairness Boards. If you wish to comment directly to SBA on the enforcement actions
of any Department of Labor agency, call 1–888–734–3247. You also may call your
local DOL Regional Office or the Department of Labor’s Office of Small Business
Programs at 202–693–6460.

Other Information for Employers and Employees
By itself or with other agencies, the Department of Labor administers several
employment programs to assist both employees and employers. In particular,
One-Stop Career Centers established under the Workforce Investment Act offer a
variety of services for individuals seeking employment, as well as resources for
employers seeking workers.
Also, employers and employees may wish to explore the Work Opportunity Tax
Credit (WOTC) and the Welfare-to-Work tax credits. These credits can assist
employers in their efforts to hire eligible low-income individuals.
Finally, employees who lose their jobs due to changes in business conditions
in general may wish to file for unemployment insurance benefits, which are
administered by the various states with assistance from the Department of Labor.
Employees who lose their jobs due to increased imports from, or shifts in production
to, foreign countries may be eligible for assistance under the Trade Adjustment Act
program.
Further information about all of these programs and provisions can be found on
the Web site of the Employment and Training Administration (www.doleta.gov).

Contents
OVERVIEW ................................................................................................................ 1
A. WAGES AND HOURS OF WORK
Minimum Wage and Overtime Pay ............................................................................... 9
Wage Garnishment ...................................................................................................... 13
Migrant and Seasonal Agricultural Worker Protection ............................................... 15
Child Labor (Nonagricultural Work) ............................................................................. 18
B. SAFETY AND HEALTH STANDARDS
Occupational Safety and Health ................................................................................ 21
Mine Safety and Health ............................................................................................... 30
Migrant and Seasonal Agricultural Worker Protection ............................................... 15
Child Labor (Nonagricultural Work) ............................................................................. 18
C. HEALTH BENEFITS AND RETIREMENT STANDARDS
Employee Benefit Plans ............................................................................................... 34
Black Lung Compensation ........................................................................................... 40
Longshore and Harbor Workers’ Compensation ........................................................ 43
D. OTHER WORKPLACE STANDARDS
Family and Medical Leave .......................................................................................... 47
Lie Detector Tests ......................................................................................................... 50
Whistleblower Protection ............................................................................................ 52
Plant Closings and Mass Layoffs .................................................................................. 55
Union Members ........................................................................................................... 57
Uniformed Service Members...................................................................................... 61
E. WORK AUTHORIZATION FOR NON-U.S. CITIZENS
Authorized Workers ..................................................................................................... 63
Temporary Agricultural Workers (H-2A Visas) ............................................................ 64
Temporary Nonagricultural Workers (H-2B Visas) ...................................................... 67
Workers in Professional and Specialty Occupations (H-1B Visas) ........................... 69
Permanent Employment of Workers Based on Immigration ..................................... 72
Nurses (H-1C Visas) ..................................................................................................... 74
Crewmembers (D-1Visas) ........................................................................................... 76
vii

F. FEDERAL CONTRACTS: WAGES, HOURS OF WORK, AND FRINGE BENEFITS
Wages in Supply and Equipment Contracts .............................................................. 78
Prevailing Wages in Service Contracts ........................................................................ 80
Prevailing Wages in Construction Contracts ............................................................... 82
Hours and Safety Standards in Construction Contracts ............................................ 84
“Kickbacks” in Federally Funded Construction .......................................................... 86
G. FEDERAL CONTRACTS: EQUAL OPPORTUNITY
Employment Discrimination and Equal Opportunity in Supply
and Service Contracts ................................................................................................. 88
Employment Discrimination in Construction Contracts ............................................. 92
Equal Opportunity for Individuals with Disabilities ................................................... 96
Employment Discrimination and Equal Opportunity for Certain
Veterans Who Served on Active Duty and Special Disabled Veterans .................. 99
H. INDEX OF ACTS BY SPECIFIC INDUSTRY
Agriculture
Fair Labor Standards Act (FLSA) ............................................................................. 9
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) .................... 15
Occupational Safety and Health Act (OSH Act) ................................................ 21
Authorized Workers (Non-U.S. Citizens) .............................................................. 63
Temporary Agricultural Workers (H-2A Visas) ...................................................... 64
Immigration and Nationality Act (INA) ................................................................. 69
Mining
Federal Mine Safety and Health Act of 1977 ...................................................... 30
Black Lung Compensation ..................................................................................... 40
Construction
Occupational Safety and Health Act (OSH Act) ................................................ 21
Davis–Bacon Act and Related Acts ...................................................................... 82
Copeland Act (“Kickbacks” in Federally Funded Construction) ......................... 86
Executive Order 11246 (Employment Discrimination in
Construction Contracts) ......................................................................................... 92
Transportation
Occupational Safety and Health Act (OSH Act) ................................................ 21

viii

Overview
Major Statutes and Regulations Administered
by the Department of Labor
This Guide describes the requirements of each major statute enforced by the
Department of Labor (DOL). The various chapters are organized by type of standard
(e.g., Wages and Hours of Work; Safety and Health Standards; Health Benefits and
Retirement Standards; Other Workplace Standards).
Each chapter discusses (1) which employers or employees are covered by the
statute; (2) the statute’s basic provisions and requirements; (3) employee rights;
(4) how to obtain information and compliance assistance from DOL; (5) penalties or
sanctions for non-compliance; and (6) relation of the statute to state, local and other
federal laws.
The chapters contain more detailed information such as the texts of statutes,
regulations, and interpretative bulletins, which can be found on DOL agencies’
Web sites. To understand their full responsibilities under each statute, users should
refer to these more detailed materials.

Please note that other federal agencies besides DOL enforce laws and regulations
that affect employers. For example, the Equal Employment Opportunity Commission
enforces many of the statutes designed to ensure non-discrimination in employment,
and the National Labor Relations Board administers the Taft–Hartley Act regulating
employer conduct with regard to employees in a wide range of areas. Please consult
these agencies for further information on their requirements.
The Overview is structured to help businesses, particularly new businesses,
determine which DOL statutes are most likely to apply to them. The first statutes
discussed apply to most employers, followed by those that apply to federal
contractors, and finally by the statutes that apply to specific industries, i.e.,
agriculture, mining, construction, and transportation.
Other sources of assistance include the following:
■

DOL’s Compliance Assistance Web page (www.dol.gov/compliance).

■

A list of major DOL-enforced statutes (www.dol.gov/compliance).

■

Employment Laws Assistance for Workers and Small Businesses (elaws) is located
at www.dol.gov/elaws. This interactive system is designed to help employers and
employees understand and comply with many laws administered by DOL. Each
elaws Advisor provides information on a specific law or regulation based on the
user’s particular situation.

I. Requirements that Apply to Most Employers
A. Wages and Hours of Work
The Fair Labor Standards Act (FLSA) prescribes minimum wage and overtime pay
standards as well as recordkeeping and child labor standards for most private and
public employment, including work conducted in the home. The Wage and Hour
Division of the Employment Standards Administration (ESA) administers this Act.
1

The minimum wage and overtime provisions of the FLSA require the following from
employers of covered employees who are not otherwise exempt:
■

As of September 1, 1997, employers must pay covered employees a minimum
wage of not less than $5.15 an hour. Employers may pay employees on a piecerate basis and, under some circumstances, may consider tips as part of wages.

■

Youths under 20 years of age may be paid a minimum wage of not less than
$4.25 an hour during the first 90 consecutive calendar days of employment with
an employer. Employers may not displace any employee to hire someone at the
youth minimum wage.

■

Although the Act does not place a limit on the total hours which may be
worked by an employee who is at least 16 years old, it does require that covered
employees, unless otherwise exempt, be paid not less than one and one-half
times their regular rates of pay for all hours worked in excess of 40 in a workweek.

In addition, the FLSA sets forth special rules for working out of the home. For
example, in certain manufacturing industries, the employer must first obtain a
certification permitting homework from the Wage and Hour Division of the
Department of Labor.
As noted above, the FLSA’s child labor provisions for nonagricultural work include
restrictions on the hours of work and occupations for youths under age 16 and
restrictions on employment of 16 and 17 year olds in occupations found to be
hazardous by the Department.
Other generally applicable statutes that set workplace standards include:
■

Under the Immigration and Nationality Act (INA), foreign workers may work in the
U.S. ESA’s Wage and Hour Division enforces rules pertaining to the employment
of nonimmigrant workers in four visa classifications: D-1 (Crewmembers); H-1C
(Registered Nurses); H-1B (workers employed in a “specialty occupation” or as
fashion models); and H-2A (workers employed in temporary agricultural jobs).
Under the INA, employers must verify the identity and employment authorization
of all employees, including foreign workers.

■

Garnishment of wages by employers is regulated under the Consumer Credit
Protection Act. ESA’s Wage and Hour Division administers this Act.

B. Safety and Health Standards
The Occupational Safety and Health Act (OSH Act), administered by the Department
of Labor’s Occupational Safety and Health Administration (OSHA), regulates safety
and health conditions in most private industry workplaces (except those in industries,
such as transportation and mining, which are regulated under other statutes).
OSHA sets safety and health standards by regulation.
■

Safety standards cover hazards such as falls, explosions, fires, and cave-ins, as
well as machine and vehicle operation and maintenance, etc.

■

Health standards regulate exposure to a variety of health hazards through
engineering controls, the use of personal protective equipment (e.g., respirators
or hearing protection), and work practices.

Employers covered by the OSH Act are required to maintain safe and healthful
workplaces. These employers must become familiar with job safety and health
standards applicable to their establishments, comply with the standards, and
2

eliminate hazardous conditions to the extent possible. Employees must comply
with all rules and regulations that apply to their own actions and practices.
Where OSHA has not set forth a specific standard, employers are responsible for
complying with the OSH Act’s “general duty” clause [Section 5(a)(1)], which states
that each employer “shall furnish…a place of employment which is free from
recognized hazards that are causing or are likely to cause death or serious physical
harm to his employees.”
Specific safety and health standards developed by OSHA supersede the more
general safety and health regulations originally issued under the Walsh–Healey Act,
the Service Contract Act, the Contract Work Hours and Safety Standards Act, and the
Arts and Humanities Act.
States operating under OSHA-approved state plans enforce safety and health
standards in their respective states, while OSHA is responsible for enforcement in
the remaining states.
Another generally applicable statute, the Fair Labor Standards Act (FLSA), prescribes
the conditions under which minors (younger than 18) can safely work. These
restrictions affect most private and public employment. ESA’s Wage and Hour
Division administers this Act.

C. Health Benefits and Retirement Standards
The Employee Retirement Income Security Act (ERISA) governs certain activities
of most employers who have pension or welfare benefit plans. This Act preempts
many state laws in this area. The Employee Benefits Security Administration (EBSA)
administers ERISA.
ERISA covered pension plans must meet a wide range of fiduciary and reporting
and disclosure requirements. EBSA’s regulations define what constitutes plan assets,
what is adequate consideration for the sale of plan assets, and the effects of control
by participants over the assets in their plans, among other things.
Under ERISA, welfare benefit plans also must meet a wide range of fiduciary,
reporting and disclosure requirements. The Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA) enacted provisions for disclosure and notification
requirements for the continuation of health care. These provisions cover group
health plans of employers with 20 or more employees on a typical business day in
the previous calendar year. COBRA gives separated participants and beneficiaries an
election to maintain coverage under the employer’s health plan at their own expense
for a limited period of time.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)
added several provisions to ERISA, which are designed to provide participants
and beneficiaries of group health plans with improved portability and continuity
of health insurance coverage. These provisions are also designed to improve
access to insurance and protect against discrimination on the basis of health status.
Moreover, HIPAA requires that health insurance coverage be renewable for small
employers in certain circumstances.
The statute also provides an insurance mechanism to protect certain types of
retirement benefits by requiring that employers pay annual pension benefit insurance
premiums to the Pension Benefit Guaranty Corporation (PBGC), which is associated
with the Department of Labor. Pension insurance information can be obtained by
writing Pension Benefits Guaranty Corporation, Processing and Technical Assistance
Branch, 1200 K Street NW, Washington, DC 20006, or by calling 202–326–4000.
3

D. Other Workplace Standards
■

The Family and Medical Leave Act (FMLA) requires employers of 50 or more
employees (and all public agencies) to provide up to 12 weeks of unpaid,
job-protected leave to eligible employees for the birth and care of a child, for
placement with the employee of a child for adoption or foster care, or for the
serious illness of the employee or an immediate family member. ESA’s Wage
and Hour Division administers this Act.

■

Veterans’ reemployment rights are protected for National Guard and Reserve
members who are called to active duty. The Uniformed Services Employment
and Reemployment Rights Act (USERRA) addresses the rights and responsibilities
of individuals and their employers, and the Veterans’ Employment and Training
Service administers this Act.

■

The Worker Adjustment and Retraining Notification Act (WARN) provides for early
warning to employees of proposed layoffs or plant closings. The Employment
and Training Administration can provide information on WARN, but since it does
not have administrative or enforcement authority under WARN, it cannot provide
specific advice or guidance with respect to individual situations.

■

The Employee Polygraph Protection Act (EPPA) prohibits most uses of lie detectors
by employers on their employees and job applicants. ESA’s Wage and Hour
Division administers this Act.

■

The Labor-Management Reporting and Disclosure Act (LMRDA) (also known as the
Landrum–Griffin Act) addresses the relationship between a union and its members.
It ensures certain basic standards of democracy and fiscal responsibility in labor
organizations. ESA’s Office of Labor-Management Standards (OLMS) administers
this Act.

II. Requirements that Apply to Employers Who Receive Federal
Contracts, Grants or Financial Assistance
Non-discrimination and affirmative action requirements for federal contractors are
set forth under Executive Order 11246, Section 503 of the Rehabilitation Act, and
the Vietnam Era Veterans’ Readjustment Assistance Act (38 USC 4212). These
laws prohibit discrimination and require affirmative action with regard to race, color,
religion, sex, national origin, and status as a qualified individual with a disability or a
protected veteran. ESA’s Office of Federal Contract Compliance Programs (OFCCP)
administers these laws.
Various laws determine wage, hour, and fringe benefit standards for employees
of federal contractors. These laws include: the Davis–Bacon and Related Acts
(for construction); the Contract Work Hours and Safety Standards Act; the
McNamara–O’Hara Service Contract Act (for services); and the Walsh–Healey
Public Contracts Act (for manufacturing). ESA’s Wage and Hour Division
determines the required wage and benefit rates and enforces these statutes.
These Acts also authorize issuance of safety and health standards to covered
contractors, unless specific standards issued by the Occupational Safety and Health
Administration (OSHA) supersede them. Contact your local OSHA Office for more
detail on safety standards (1–800–321– OSHA).
Employers who receive federal grants or financial assistance from the U.S. Department
of Labor must comply with the provisions of Title VI of the Civil Rights Act of 1964, as
amended, and Section 504 of the Rehabilitation Act of 1973, as amended. Entities
4

that receive federal financial assistance under the Workforce Investment Act of 1998
(WIA) or that run programs and activities that are part of the One-Stop Career Center
delivery system are subject to section 188 of the WIA. Information about these
requirements can be found on DOL’s Equal Employment Opportunity Web page
(www.dol.gov/dol/topic/discrimination/index.htm).

III. Requirements that Apply to Specific Industries
Many of the laws (e.g., the Occupational Safety and Health Act) described in the
preceding sections also apply to businesses in the following industries.

A. Agriculture
Under the authority of the Occupational Safety and Health Act, OSHA has issued a
number of safety standards that address such matters as field sanitation, overhead
protection for operators of agricultural tractors, grain handling facilities, and guarding
of farm field equipment and cotton gins. Contact your local OSHA Office for more
detail (1–800–321– OSHA) .
The Immigration and Nationality Act (INA) requires that employers wishing to use
nonimmigrant workers for temporary agricultural employment under the H-2A visa
classification apply to the Employment and Training Administration for a labor
certificate showing that there are not sufficient workers in the U.S. who are able,
willing, qualified and available to do the work, and that employment of such
nonimmigrant workers will not adversely affect the wages and working conditions of
workers in the U.S. Employers of such workers must comply with worker-protection
provisions, including wage, transportation and housing safety standards. ESA’s Wage
and Hour Division enforces these provisions. Contact your local ESA Wage and Hour
Division Office for more detail (1–866– 4USWAGE).
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) requires that
covered farm labor contractors, agricultural employers and agricultural associations
comply with worker protection provisions applicable to migrant and seasonal
agricultural workers whom they recruit, solicit, hire, employ, furnish or transport or, in
the case of migrant agricultural workers, to whom they provide housing. ESA’s Wage
and Hour Division administers the requirements of MSPA. Contact your local ESA Wage
and Hour Division Office for more detail.
The Fair Labor Standards Act (FLSA) contains special child labor regulations that apply
to agricultural employment. The regulations administered and enforced by the Wage
and Hour Division apply only to those establishments with employees (i.e., they do
not apply to family-run and family-operated farms that do not hire outside workers).
Contact your local ESA Wage and Hour Division Office for more details.
In addition, the Employment and Training Administration administers several
agriculture-specific programs.
Finally, the Environmental Protection Agency (www.epa.gov) issues and enforces
several safety and health standards (e.g., with respect to pesticides) that apply to
this industry.

B. Mining
The Federal Mine Safety and Health Act of 1977 was enacted to improve working
conditions in the nation’s mines. This law strengthened an earlier coal mining law
and brought metal and nonmetal miners under the same general protections as those
5

afforded coal miners. Its provisions cover all miners and other persons employed to
work on mine property. The Mine Safety and Health Administration (MSHA)
administers the Act.
Under the Act, the operators of mines, with the assistance of their employees, are
responsible for ensuring the health and safety of the miners. Each mine must be
registered with MSHA. Many mine operators must submit plans to MSHA before
beginning operations, and such plans must be followed during mining.
The 1977 Act established mandatory miner training requirements and strengthened
health protection measures and gassy mine safety programs. The Act also provided
for closure of mines in cases of imminent danger to workers or failure to correct
violations within the time allowed, greater involvement of miners and their
representatives in processes affecting workers’ health, and tougher civil monetary
penalties for safety or health violations by mine operators.
MSHA’s Coal Mine Safety and Health Division enforces the law and the regulations at
underground and surface coal mines. MSHA’s Metal and Nonmetal Mine Safety and
Health Division enforces federal requirements at non-coal mines (including open pit
mines, stone quarries, and sand and gravel operations).
Health and safety regulations developed and enforced by MSHA cover numerous
hazards, including those associated with the following:
■

Exposure to respirable dust, airborne contaminants and noise;

■

Design, operation and maintenance requirements for mechanical equipment,
including mobile equipment;

■

Roof falls, and rib and face rolls;

■

Flammable, explosive and noxious gases, dust and smoke;

■

Electrical circuits and equipment;

■

Fires;

■

Hoisting; and

■

Access and egress.

The Black Lung Benefits Act (BLBA), part of the Federal Mine Safety and Health
Act of 1977, provides for monthly payments and medical treatment to coal miners
totally disabled from pneumoconiosis (black lung disease). The Act also provides
for payments to certain family members of miners who died from pneumoconiosis or
are totally disabled because of it. ESA’s Office of Workers’ Compensation Programs,
Division of Coal Mine Workers’ Compensation, administers the Act.

C. Construction
Several Department of Labor agencies administer programs specifically related to the
construction industry:
■

Under the Occupational Safety and Health Act, OSHA sets and enforces
construction safety and health standards.

■

The Davis–Bacon Act and Related Acts require most contractors and subcontractors
on federally assisted contracts in excess of $2,000 to pay prevailing wage rates and
fringe benefits, as determined by the Secretary of Labor through ESA’s Wage and
Hour Division.

■

Under Executive Order 11246, ESA’s Office of Federal Contract Compliance
Programs has issued specific regulations on non-discrimination and affirmative
action requirements for federal construction contractors and subcontractors.

■

The “Anti-Kickback” section of the Copeland Act applies to all contractors and
subcontractors performing on any federally funded or assisted contract for the
construction or repair of any public building or public work, except contracts for
which the only federal assistance is a loan guarantee. This provision precludes a
contractor or subcontractor from in any manner inducing an employee to give up
any part of the compensation to which he or she is entitled.

D. Transportation
Under the Occupational Safety and Health Act, OSHA issues and enforces standards
for longshore work and the maritime industry. However, agencies outside of the
Department of Labor administer many other laws affecting the transportation industry.
For example, the Department of Transportation and the Railway Retirement Board
primarily administer the Railway Labor Act.

Minimum Wage and Overtime Pay
Fair Labor Standards Act of 1938 (FLSA), as
amended (29 USC §201 et seq.; 29 CFR 510-794)
Who is Covered
The Fair Labor Standards Act (FLSA) establishes standards for minimum wages,
overtime pay, recordkeeping and child labor. These standards affect more than
100 million workers, both full-time and part-time, in the private and public sectors.
The Act applies to enterprises with employees who engage in interstate commerce,
produce goods for interstate commerce, or handle, sell or work on goods or materials
that have been moved in or produced for interstate commerce. For most firms, a test
of not less than $500,000 in annual dollar volume of business applies (i.e., the Act
does not cover enterprises with less than this amount of business).
However, the Act does cover the following regardless of their dollar volume of
business: hospitals; institutions primarily engaged in the care of the sick, aged,
mentally ill or disabled who reside on the premises; schools for children who are
mentally or physically disabled or gifted; preschools, elementary and secondary
schools and institutions of higher education; and federal, state and local government
agencies.
Employees of firms that do not meet the $500,000 annual dollar volume test may
be covered in any workweek when they are individually engaged in interstate
commerce, the production of goods for interstate commerce, or an activity that
is closely related and directly essential to the production of such goods.
The Act covers domestic service workers, such as day workers, housekeepers,
chauffeurs, cooks, or full-time babysitters, if they receive at least $1,300 (2001)
in cash wages from one employer in a calendar year, or if they work a total of more
than eight hours a week for one or more employers.
An enterprise that was covered by the Act on March 31, 1990, and that ceased to
be covered because of the increase in the annual dollar volume test to $500,000,
as required under the 1989 amendments to the Act, continues to be subject to
the overtime pay, child labor and recordkeeping requirements of the Act.
The Act exempts some employees from its overtime pay and minimum wage
provisions, and it also exempts certain employees from the overtime pay provisions
alone. Because the exemptions are narrowly defined, employers should check the
exact terms and conditions for each by contacting their local Wage and Hour Division
office. These offices are listed in most telephone directories under U.S. Government,
Department of Labor, Wage and Hour Division.

The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866 – 4 –USA–DOL (1–866 – 487–2365).

The following are examples of employees exempt from both the minimum wage
and overtime pay requirements:
■

Executive, administrative and professional employees (including teachers and
academic administrative personnel in elementary and secondary schools), outside
sales employees, and certain skilled computer professionals (as defined in the
Department of Labor’s regulations);

■

Employees of certain seasonal amusement or recreational establishments;

■

Employees of certain small newspapers and switchboard operators of small
telephone companies;

■

Seamen employed on foreign vessels;

■

Employees engaged in fishing operations;

■

Employees engaged in newspaper delivery;

■

Farm workers employed on small farms (i.e., those that used less than 500
“man-days” of farm labor in any calendar quarter of the preceding calendar year);
and

■

Casual babysitters and persons employed as companions to the elderly or infirm.

The following are examples of employees exempt from the overtime pay
requirements only:
■

Certain commissioned employees of retail or service establishments;

■

Auto, truck, trailer, farm implement, boat or aircraft salespersons employed by
non-manufacturing establishments primarily engaged in selling these items to
ultimate purchasers;

■

Auto, truck, or farm implement parts-clerks and mechanics employed by
non-manufacturing establishments primarily engaged in selling these items to
ultimate purchasers;

■

Railroad and air carrier employees, taxi drivers, certain employees of motor carriers,
seamen on American vessels, and local delivery employees paid on approved trip
rate plans;

■

Announcers, news editors and chief engineers of certain non-metropolitan
broadcasting stations;

■

Domestic service workers who reside in their employers’ residences;

■

Employees of motion picture theaters; and

■

Farmworkers.

Certain employees may be partially exempt from the overtime pay requirements.
These include:
■

Employees engaged in certain operations on agricultural commodities and
employees of certain bulk petroleum distributors;

■

Employees of hospitals and residential care establishments which have agreements
with the employees that they will work 14-day periods in lieu of 7-day workweeks
(if the employees are paid overtime premium pay within the requirements of
the Act for all hours worked over eight in a day or 80 in the 14-day work period,
whichever is the greater number of overtime hours); and

■

Employees who lack a high school diploma, or who have not completed the eighth
grade, who spend part of their workweeks in remedial reading or training in other
basic skills that are not job-specific. Employers may require such employees to
engage in these activities up to 10 hours in a workweek. Employers must pay normal
wages for the hours spent in such training but need not pay overtime premium pay
for training hours.

Basic Provisions/Requirements
The Act requires employers of covered employees who are not otherwise exempt
to pay these employees a minimum wage of not less than $5.15 an hour as of
September 1, 1997. Youths under 20 years of age may be paid a minimum wage
of not less than $4.25 an hour during the first 90 consecutive calendar days of
employment with an employer. Employers may not displace any employee to hire
someone at the youth minimum wage.
Employers may pay employees on a piece-rate basis, as long as they receive at
least the equivalent of the required minimum hourly wage rate. Employers of tipped
employees (i.e., those who customarily and regularly receive more than $30 a month
in tips) may consider such tips as part of their wages, but employers must pay a direct
wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain
other conditions.
The Act also permits the employment of certain individuals at wage rates below
the statutory minimum wage under certificates issued by the Department of Labor:
■

Student learners (vocational education students);

■

Full-time students in retail or service establishments, agriculture, or institutions of
higher education; and

■

Individuals whose earning or productive capacities for the work to be performed are
impaired by physical or mental disabilities, including those related to age or injury.

The Act does not limit either the number of hours in a day or the number of days in a
week that an employer may require an employee to work, as long as the employee is at
least 16 years old. Similarly, the Act does not limit the number of hours of overtime that
may be scheduled. However, the Act requires employers to pay covered employees
not less than one and one-half times their regular rates of pay for all hours worked in
excess of 40 in a workweek, unless the employees are otherwise exempt.
Employers must keep records on wages, hours and other information as set forth in the
Department of Labor’s regulations. Most of this data is the type that employers generally
maintain in ordinary business practice.
The Act prohibits performance of certain types of work in an employee’s home unless
the employer has obtained prior certification from the Department of Labor. Restrictions
apply in the manufacture of knitted outerwear, gloves and mittens, buttons and buckles,
handkerchiefs, embroideries, and jewelry (where safety and health hazards are not
involved). Employers wishing to employ homeworkers in these industries are required
to provide written assurances to the Department of Labor that they will comply with
the Act’s wage and other requirements, among other things.
The Act generally prohibits manufacture of women’s apparel (and jewelry under
hazardous conditions) in the home except under special certificates that may be
issued when the employee cannot adjust to factory work because of age or
disability (physical or mental), or must care for a disabled individual in the home.
11

Special provisions apply to state and local government employment.
It is a violation of the Act to fire or in any other manner discriminate against an
employee for filing a complaint or for participating in a legal proceeding under the
Act. The Act also prohibits the shipment of goods in interstate commerce that were
produced in violation of the minimum wage, overtime pay, child labor, or special
minimum wage provisions.

Employee Rights
Employees may find out how to file a complaint from local Wage and Hour Division
offices, which are listed in most telephone directories under U.S. Government,
Department of Labor, Wage and Hour Division, or from the program’s toll-free
information line at 1-866-4USWAGE.
In addition, an employee may file a private suit, generally for the previous two years
of back pay (three years in the case of a willful violation) and an equal amount as
liquidated damages, plus attorney’s fees and court costs.

Compliance Assistance Available
More detailed information about the FLSA, including copies of explanatory brochures
and regulatory and interpretative materials, is available from local Wage and Hour
Division offices, which are listed in most telephone directories under U.S. Government,
Department of Labor, Wage and Hour Division. Compliance assistance information
may also be obtained on the Wage and Hour Division’s Web site (www.wagehour.dol.gov).
The elaws Fair Labor Standards Act Advisor (www.dol.gov/elaws) answers questions
about workers and businesses that are subject to the FLSA.

Penalties/Sanctions
The Department of Labor uses a variety of remedies to enforce compliance with the
Act’s requirements. When Wage and Hour Division investigators encounter violations,
they recommend changes in employment practices to bring the employer into
compliance, and they request the payment of any back wages due to employees.
Willful violators may be prosecuted criminally and fined up to $10,000. A second
conviction may result in imprisonment. Employers who willfully or repeatedly violate
the minimum wage or overtime pay requirements are subject to civil money penalties
of up to $1,000 per violation.
When the Department of Labor assesses a civil money penalty, the employer has the
right to file an exception to the determination within 15 days of receipt of the notice.
If an exception is filed, it is referred to an administrative law judge for a hearing and
determination as to whether the penalty is appropriate. If an exception is not filed,
the penalty becomes final.
The Department of Labor may also bring suit for back pay and an equal amount in
liquidated damages, and it may obtain injunctions to restrain persons from violating
the Act.

Relation to State, Local and Other Federal Laws
State laws also apply to employment subject to this Act. When both this Act and a
state law apply, the law setting the higher standards must be observed.
12

Wage Garnishment
Title III, Consumer Credit Protection Act (CCPA)
(15 USC §1671 et seq.; 29 CFR 870)
Who is Covered
Title III of the Consumer Credit Protection Act (CCPA) protects employees from
discharge by their employers because their wages have been garnished for any one
debt, and it limits the amount of an employee’s earnings that may be garnished in any
one week. Title III applies to all employers and individuals who receive earnings for
personal services (including wages, salaries, commissions, bonuses and income from
a pension or retirement program, but ordinarily not including tips).

Basic Provisions/Requirements
Wage garnishment occurs when an employer withholds the earnings of an individual
for the payment of a debt as the result of a court order or other equitable procedure.
Title III prohibits an employer from discharging an employee because his or her
earnings have been subject to garnishment for any one debt, regardless of the
number of levies made or proceedings brought to collect it. Title III does not,
however, protect an employee from discharge if the employee’s earnings have
been subject to garnishment for a second or subsequent debt.
Title III also protects employees by limiting the amount of earnings that may be
garnished in any workweek or pay period to the lesser of 25 percent of disposable
earnings or the amount by which disposable earnings are greater than 30 times
the federal minimum hourly wage prescribed by Section 6(a)(1) of the Fair Labor
Standards Act of 1938. This limit applies regardless of how many garnishment
orders an employer receives. As of September 1, 1997, the federal minimum
wage is $5.15 per hour.
In court orders for child support or alimony, Title III allows up to 50 percent of an
employee’s disposable earnings to be garnished if the employee is supporting a
current spouse or child, and up to 60 percent if the employee is not doing so.
An additional five percent may be garnished for support payments over 12 weeks
in arrears. The restrictions noted in the preceding paragraph do not apply to such
garnishments.
“Disposable earnings” is the amount of earnings left after legally required deductions
(e.g., federal, state and local taxes, Social Security, unemployment insurance and
state employee retirement systems) have been made. Deductions not required by
law (e.g., union dues, health and life insurance, and charitable contributions) are
not subtracted from gross earnings when the amount of disposable earnings for
garnishment purposes is calculated.

The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and
it is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official
sources of applicable law. Every effort has been made to ensure that the information provided is complete
and accurate as of the time of publication and this will continue. Later versions of this Guide will be offered
at www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Title III specifies that garnishment restrictions do not apply to bankruptcy court
orders and debts due for federal and state taxes. Nor do they affect voluntary wage
assignments, i.e., situations where workers voluntarily agree that their employers
may turn over a specified amount of their earnings to a creditor or creditors.

Employee Rights
In most cases, Title III gives wage earners the right to receive at least partial
compensation for the personal services they provide despite wage garnishment.
This law also prohibits an employer from discharging an employee because of
garnishment of wages for any one indebtedness. The Wage and Hour Division of the
Employment Standards Administration accepts complaints of alleged Title III violations.

Compliance Assistance Available
The Wage and Hour Division administers and enforces Title III. More detailed
information, including copies of explanatory brochures and regulatory and
interpretative materials, may be obtained by contacting the local Wage and Hour
offices (1–866– 4USWAGE). Compliance assistance information is available from the
Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Violations of Title III may result in reinstatement of a discharged employee, payment
of back wages, and restoration of improperly garnished amounts. Where violations
cannot be resolved through informal means, the Department of Labor may initiate
court action to restrain violators and remedy violations. Employers who willfully violate
the discharge provisions of the law may be prosecuted criminally and fined up to
$1,000, or imprisoned for not more than one year, or both.

Relation to State, Local and Other Federal Laws
If a state wage garnishment law differs from Title III, the employer must observe the
law resulting in the smaller garnishment, or prohibiting the discharge of an employee
because his or her earnings have been subject to garnishment for more than one
debt.

Migrant and Seasonal
Agricultural Worker Protection
The Migrant and Seasonal Agricultural
Worker Protection Act (MSPA), as amended
(29 USC §1801 et seq.)
Who is Covered
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) safeguards most
migrant and seasonal agricultural workers in their interactions with farm labor contractors,
agricultural employers, agricultural associations, and providers of migrant housing.
However, some farm labor contractors, agricultural employers, agricultural associations,
and providers of migrant housing are exempt from MSPA under limited circumstances.

Basic Provisions/Requirements
The MSPA requires farm labor contractors, agricultural employers, and agricultural
associations who recruit, solicit, hire, employ, furnish, transport or house agricultural
workers, as well as providers of migrant housing, to meet certain minimum
requirements in their dealings with migrant and seasonal agricultural workers.
These requirements include:
■

Farm labor contractor registration: Farm labor contractors (and any employee
who performs farm labor contracting functions) must register with the Department
of Labor before recruiting, soliciting, hiring, employing, furnishing or transporting
any migrant or seasonal agricultural worker. Agricultural employers and associations
(and their employees) need not register as farm labor contractors.
An agricultural employer or association using the services of a farm labor contractor
must first verify the registration status of the farm labor contractor. This process
includes determining that the contractor is properly authorized for all activities he
or she will undertake. To verify registration status, call 1–866–4USWAGE.

■

Employment relationship: Under certain circumstances, the Department of Labor
may determine that an agricultural employer or association that uses the services of
a farm labor contractor is a joint employer of the agricultural workers furnished by
the farm labor contractor. In joint employment situations, the agricultural employer
or association is equally responsible with the farm labor contractor for compliance
with employment-related MSPA obligations, such as the proper payment of wages.

■

Disclosure: Each migrant and seasonal day-haul worker must receive a written
disclosure at the time of recruitment that describes the terms and conditions of his
or her employment. When offering employment, the employer must provide such
disclosure to all seasonal workers upon request. The disclosure must be written in
the worker’s language. The employer must also post in a conspicuous place at the
job site a poster setting forth the rights and protections that MSPA affords workers.
A housing provider must post or present to each worker a statement of the terms
and conditions of occupancy.

■

Information and Recordkeeping: Each farm labor contractor, agricultural employer
or association that employs any agricultural worker must maintain payroll records
for each worker showing the basis on which wages were paid, the number of
piecework units earned, the number of hours worked, the total pay for each pay
period, the amounts and reasons for any deductions, and the net pay.
The employer must provide all workers with these itemized statements and must
preserve these records for three years. If a farm labor contractor is performing
the payroll function, the contractor must provide a copy of the pay records to
the person to whom the workers are furnished (e.g., agricultural employer or
association), and that person must keep the records for three years. No farm labor
contractor, agricultural employer, or association may knowingly provide false or
misleading information to a worker about employment or the terms and conditions
of employment.

■

Wages, Supplies, and Working Arrangements: Each person employing agricultural
workers must pay all wages owed when due. Farm labor contractors, agricultural
employers and associations are prohibited from requiring workers to purchase
goods or services solely from such contractor, employer or association or any
person acting as an agent for such a person. In addition, no farm labor contractor,
agricultural employer or association may violate the terms of the working
arrangement without adequate justification.

■

Safety and Health of Housing: Each person who owns or controls housing
provided to migrant agricultural workers must ensure that the facility complies with
the federal and state safety and health standards covering that housing. Migrant
housing may not be occupied until it has been inspected and certified to meet
these safety and health standards. The certification of occupancy must be posted
at the site.

■

Transportation Safety: Each vehicle used to transport migrant or seasonal
agricultural workers must be properly insured and operated by a properly licensed
driver. Each such vehicle must also meet federal and state safety standards.

■

Employer Protections: Farm labor contractors must comply with the terms of any
written agreement they make with an agricultural employer or association.

■

Enforcement: The Wage and Hour Division enforces MSPA. During a MSPA
investigation, Wage and Hour investigators may enter and inspect premises
(including vehicles and housing), review and transcribe payroll and other records,
and interview employers and employees.

Employee Rights
The MSPA provides migrant agricultural workers and day-haul seasonal agricultural
workers the right to receive written notice of the terms and conditions of their
employment when recruited; it provides seasonal workers the right to receive such
16

notification upon the worker’s request. The MSPA also requires employers of migrants
and seasonal agricultural workers to adhere to the disclosed terms and conditions of
employment. Certain exemptions and exclusions apply to these provisions.
The MSPA also gives migrant and seasonal agricultural workers the right to file a
complaint with the Wage and Hour Division, file a private lawsuit under the Act (or
cause a complaint or lawsuit to be filed), or testify or cooperate with an investigation
or lawsuit in other ways without being intimidated, threatened, restrained, coerced,
blacklisted, discharged or discriminated against in any manner.

Compliance Assistance Available
Copies of Wage and Hour publications may be obtained from the nearest office of
the Wage and Hour Division, which is listed in most telephone directories under
U.S. Government, Department of Labor. Information about farm labor contractor
applications is available from the nearest State Workforce Agency office or any Wage
and Hour Division office (1–866– 4USWAGE). Compliance assistance information
appears on the Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Violations of MSPA may result in civil money penalties, back wage assessments, and
revocations of certificates of registration. Violations may also result in civil or criminal
actions instituted by the Department of Labor against any person found in violation
of the Act. Civil money penalties up to $1,000 may be assessed for each violation.
Criminal conviction for first time violators may result in one year in prison and a $1,000
fine; repeat convictions can result in up to three years in prison and $10,000 in fines.
In addition, individuals whose MSPA rights have been violated may seek civil money
damages in federal court.

Relation to State, Local and Other Federal Laws
MSPA supplements any state or local law. Compliance with MSPA does not excuse
violation of applicable state laws or regulations.

Child Labor (Nonagricultural Work)
Fair Labor Standards Act of 1938 (FLSA), as
amended (29 USC §201 et seq.; 29 CFR 570-580)
Who is Covered
The child labor provisions of the Fair Labor Standards Act (FLSA) are designed to
protect the educational opportunities of youths and to prohibit their employment in
jobs and under conditions detrimental to their health and well-being.
In nonagricultural work, the child labor provisions apply to enterprises with employees
engaging in interstate commerce, producing goods for interstate commerce, or
handling, selling or working on goods or materials that have been moved in or
produced for interstate commerce. For most firms, an annual dollar volume of
business test of not less than $500,000 applies.
The Act covers the following employers regardless of their dollar volume of business:
hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill or
disabled who reside on the premises; schools for children who are mentally or
physically disabled or gifted; preschools, elementary and secondary schools and
institutions of higher education; and federal, state and local government agencies.
Employees of firms that do not meet the $500,000 annual dollar volume test may
be covered in any workweek in which they are individually engaged in interstate
commerce, the production of goods for interstate commerce, or an activity that is
closely related and directly essential to the production of such goods.
An enterprise that was covered by the Act on March 31, 1990, and is no longer
covered because of the increase in the annual dollar volume test to $500,000 under
the 1989 amendments to the Act, remains subject to the Act’s child labor provisions.
While 16 is the minimum age for most nonfarm work, youths aged 14 and 15 may
work outside of school hours in certain occupations under certain conditions. They
may, at any age: deliver newspapers; perform in radio, television, movies, or theatrical
productions; work for their parents in their solely owned nonfarm businesses (except
in mining, manufacturing, or in any other occupation declared hazardous by the
Secretary); or gather evergreens and make evergreen wreaths.

Basic Provisions/Requirements
The child labor provisions include restrictions on hours of work and occupations
for youths under age 16. These provisions also set forth 17 hazardous occupations
orders for jobs that the Secretary has declared too dangerous for those under age 18
to perform.

The Act prohibits the interstate shipment of goods produced in violation of the
child labor provisions. It is also a violation of the Act to fire or in any other manner
discriminate against an employee for filing a complaint or for participating in a legal
proceeding under the Act.
The permissible jobs and hours of work, by age, in nonfarm work are as follows:
■

Youths age 18 or older are not subject to restrictions on jobs or hours;

■

Youths age 16 and 17 may perform any job not declared hazardous by the
Secretary, and are not subject to restrictions on hours;

■

Youths age 14 and 15 may work outside school hours in various nonmanufacturing,
nonmining, nonhazardous jobs under the following conditions: no more than three
hours on a school day, 18 hours in a school week, eight hours on a non-school day,
or 40 hours in a non-school week. In addition, they may not begin work before
7 a.m. nor work after 7 p.m., except from June 1 through Labor Day, when evening
hours are extended until 9 p.m. Those enrolled in an approved Work Experience
and Career Exploration Program (WECEP) may work up to 23 hours in school weeks
and three hours on school days (including during school hours).

Detailed information on the occupations determined to be hazardous by the
Secretary is available from the Wage and Hour Division offices.
By regulation, employers must keep records of the dates of birth of employees under
age 19, their daily starting and quitting times, their daily and weekly hours of work,
and their occupations. Employers may protect themselves from unintentional violation
of the child labor provisions by keeping on file an employment or age certificate for
each young worker to show that the youth is the minimum age for the job. Certificates
issued under most state laws are acceptable for this purpose.

Employee Rights
The FLSA prohibits employers from engaging in oppressive child labor, as defined by
the Act. The FLSA also gives an employee the right to file a complaint with the Wage
and Hour Division and testify or in other ways cooperate with an investigation or legal
proceeding without being fired or discriminated against in any other manner.

Compliance Assistance Available
More detailed information, including copies of explanatory brochures and regulatory
and interpretative materials, may be obtained by contacting the Wage and Hour
Division offices (1–866– 4USWAGE). Compliance assistance information may be
found on the Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Employers are subject to a civil money penalty of up to $10,000 ($11,000 for violations
occurring after January 6, 2002) per worker for each violation of the child labor
provisions. When a civil money penalty is assessed, employers have the right to file an
exception to the determination within 15 days of receipt of the notice of such penalty.
When an exception is filed, it is referred to an administrative law judge for a hearing
and determination as to whether the penalty is appropriate. Either party may appeal
the decision of the administrative law judge to the Secretary of Labor. If an exception
is not timely filed, the penalty becomes final.
19

The Act also provides for a criminal fine of up to $10,000 upon conviction for a
willful violation. For a second conviction for a willful violation, the Act provides for
a fine of not more than $10,000 and imprisonment for up to six months, or both.
The Secretary may also bring suit to obtain injunctions to restrain persons from
violating the Act.

Relation to State, Local and Other Federal Laws
Many states have child labor laws. When both this Act and a state law apply,
the law setting the higher standards must be observed.

Occupational Safety and Health
The Occupational Safety and Health Act
of 1970 (OSH Act) (29 USC §651 et seq.;
29 CFR 1900 to end)
Who is Covered
In general, the Act covers all employers and their employees in the 50 states, the
District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either
directly by the federal Occupational Safety and Health Administration (OSHA) or by
an OSHA-approved state job safety and health plan. Employees of the U.S. Postal
Service also are covered.
The Act defines an employer as any “person engaged in a business affecting
commerce who has employees, but does not include the United States or any
state or political subdivision of a State.” Therefore, the Act applies to employers
and employees in such varied fields as manufacturing, construction, longshoring,
agriculture, law and medicine, charity and disaster relief, organized labor and private
education.
The Act does not cover:
■

Self-employed persons;

■

Farms which employ only immediate members of the farmer’s family;

■

Industries in which other federal agencies, operating under the authority of other
federal laws, regulate working conditions. This category includes most working
conditions in mining, nuclear energy and nuclear weapons manufacture, and many
aspects of the transportation industries; and

■

Employees of state and local governments, unless they are in one of the states
with OSHA-approved safety and health plans.

Basic Provisions/Requirements
The Act assigns OSHA two regulatory functions: setting standards and conducting
inspections to ensure that employers are providing safe and healthful workplaces.
OSHA standards may require that employers adopt certain practices, means,
methods or processes reasonably necessary and appropriate to protect workers on
the job. Employers must become familiar with the standards applicable to their
establishments and eliminate hazards.
Compliance with standards may include ensuring that employees have and use
personal protective equipment when required for safety or health. Employees must
comply with all rules and regulations that apply to their own actions and conduct.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Even in areas where OSHA has not set forth a standard addressing a specific hazard,
employers are responsible for complying with the OSH Act’s “general duty” clause.
The general duty clause [Section 5(a)(1)] states that each employer “shall furnish. . .
a place of employment which is free from recognized hazards that are causing or
are likely to cause death or serious physical harm to his employees.”
States with OSHA-approved job safety and health plans must set standards that are
at least as effective as the equivalent federal standard. Most of the state-plan states
adopt standards identical to the federal ones (three states, New Jersey, New York
and Connecticut, have plans which cover only public sector employees).
Federal OSHA Standards. Standards are grouped into four major categories:
general industry (29 CFR 1910); construction (29 CFR 1926); maritime (shipyards,
marine terminals, longshoring—29 CFR 1915-19); and agriculture (29 CFR 1928).
While some standards are specific to just one category, others apply across industries.
Among the standards with similar requirements for all sectors of industry are those
that address access to medical and exposure records, personal protective
equipment, and hazard communication.
■

Access to Medical and Exposure Records: This regulation requires the employer
to grant the employee access to any medical records the employer maintains with
respect to that employee, including any records about the employee’s exposure
to toxic substances.

■

Personal Protective Equipment: This standard, which is defined separately for
each segment of industry except agriculture, requires employers to provide
employees with personal equipment designed to protect them against certain
hazards. This equipment can range from protective helmets to prevent head
injuries in construction and cargo handling work, to eye protection, hearing
protection, hard-toed shoes, special goggles for welders, and gauntlets for
iron workers.

■

Hazard Communication: This standard requires manufacturers and importers
of hazardous materials to conduct hazard evaluations of the products they
manufacture or import. If a product is found to be hazardous under the terms of
the standard, the manufacturer or importer must so indicate on containers of the
material, and the first shipment of the material to a new customer must include a
material safety data sheet (MSDS). Employers must use these MSDSs to train their
employees to recognize and avoid the hazards presented by the materials.

OSHA regulations cover such items as recordkeeping, reporting and posting.
■

Recordkeeping: Every employer covered by OSHA who has more than 10
employees, except for employers in certain low-hazard industries in the retail,
finance, insurance, real estate, and service sectors, must maintain three types of
OSHA-specified records of job-related injuries and illnesses.
The OSHA Form 300 is an injury/illness log, with a separate line entry for each
recordable injury or illness. Such events include work-related deaths, injuries and
illnesses other than minor injuries that require only first aid treatment and that do
not involve medical treatment, loss of consciousness, restriction of work or motion,
or transfer to another job. Each year, the employer must post a summary of the
OSHA Form 300 on a Form 300A, which includes the previous year’s injuries and
illnesses, in the workplace from February through April.
OSHA Form 301 is an individual incident report that provides added detail
about each specific recordable injury or illness. A suitable insurance or workers’

compensation form that provides the same details may be substituted for OSHA
Form 301.
Employers with 10 or fewer employees and employers in statistically low-hazard
industries (listed in 29 CFR 1904, Subpart B) are exempt from maintaining these
records. Industries currently designated as low-hazard include: automobile
dealers; apparel and accessory stores; eating and drinking places; most finance,
insurance, and real estate industries; and certain service industries, such as
personal and business services, medical and dental offices, and legal, educational,
and membership organizations.
However, in one situation such employers must still keep these records. Each year,
the Department of Labor’s Bureau of Labor Statistics (BLS) conducts a national
survey of workplace injuries and illnesses. Participants are selected by the
individual states, and all employers selected for the survey, even those usually
exempt from the recordkeeping requirements, must maintain these records.
Before the end of the year, OSHA notifies all selected employers to begin keeping
records during the coming year. The state offices that selected the employers are
available to help employers complete the forms.
■

Reporting: Each employer, regardless of industry category or the number of its
employees, must advise the nearest OSHA office of any accident that results in one
or more fatalities or the hospitalization of three or more employees. The employer
must so notify OSHA within eight hours of the occurrence of the accident. OSHA
often investigates such accidents to determine whether violations of standards
contributed to the event.

Voluntary Protection Program. The Voluntary Protection Program (VPP) is an OSHA
initiative aimed at extending worker protection beyond the minimum required by
OSHA standards. This program, along with others such as expanded on-site
consultation services and full-service area offices, is a cooperative approach that,
when coupled with an effective enforcement program, expands worker protection
to help meet the goals of the OSH Act of 1970.
The VPP is designed to:
■

Recognize the outstanding achievements of those who have successfully
incorporated comprehensive safety and health programs into their total
management systems;

■

Motivate others to achieve excellent safety and health results in the same
outstanding way; and

■

Establish a relationship between employers, employees, and OSHA that is based
on cooperation rather than coercion.

OSHA reviews an employer’s VPP application and visits the worksite to verify that the
safety and health program described is in effect at the site. OSHA conducts annual
evaluations for Merit and Demonstration programs and triennial evaluations for Star
programs. All participants must send their injury information annually to their OSHA
regional offices. Sites participating in the VPP are not scheduled for programmed
inspections. However, OSHA handles any employee complaints, serious accidents
or significant chemical releases according to routine procedures.
An employer may apply for a VPP at the nearest OSHA regional office. If OSHA
approves the written qualifications, it schedules an onsite review. The review team
presents its findings in a report for the company’s evaluation before submitting it to
the Assistant Secretary for Occupational Safety and Health.
23

If the report is approved, the Assistant Secretary sends a letter to the employer
informing him or her of the worksite’s participation in the VPP, and the employer
receives a certificate and flag at a ceremony held at or near the approved worksite.
Employers at Star sites that are reapproved after triennial evaluation receive plaques
at similar ceremonies.
The VPP is available in states under federal jurisdiction. Some states with their own
safety and health programs have similar programs. Interested companies in these
states should contact the appropriate state agency for more information.

Employee Rights
The Act grants employees several important rights. Among them are the right to
complain to OSHA about safety and health conditions in their workplaces and have
their identities kept confidential from employers, to contest the amount of time OSHA
allows for correcting violations of standards, and to participate in OSHA workplace
inspections.
Private sector employees who exercise their rights under OSHA can be
protected against employer reprisal, as described in Section 11(c) of the OSH Act.
Employees must notify OSHA within 30 days of the time they learned of the alleged
discriminatory action. OSHA will then investigate, and if it agrees that discrimination
has occurred, OSHA will ask the employer to restore any lost benefits to the affected
employee. If necessary, OSHA can take the employer to court. In such cases, the
worker pays no legal fees.

Compliance Assistance Available
■

Standards: The Federal Register is an excellent source of information on
standards, since all OSHA standards are published there when made final, as
are all amendments, corrections, insertions and deletions. The Federal Register
is published five days a week, and it is available in many public libraries.
Annual subscriptions are available from the Superintendent of Documents, U.S.
Government Printing Office (GPO), Washington, DC 20402. OSHA also provides
copies of its Federal Register notices on its Web site (www.osha.gov).
Each year the Office of the Federal Register publishes all current regulations and
standards in the Code of Federal Regulations (CFR), also available at many public
libraries and from GPO. OSHA’s regulations and standards, which are collected in
several volumes in Title 29 CFR, Parts 1900-1999, are also available on OSHA’s Web
page on standards. In addition, OSHA has a compliance assistance section on its
Web site. For a fee, GPO offers a data text-retrieval package in CD-ROM format that
contains all OSHA standards, compliance directives and standards interpretations.
Finally, a number of Expert Advisors help employers and workers to understand and
apply OSHA’s regulations.
Because states with OSHA-approved job safety and health programs adopt and
enforce their own standards under state law, copies of these standards can be
obtained from the individual states.

■

Training and Education: OSHA has more than 70 full-service field offices that
offer a variety of informational services, such as publications, technical advice,
audio-visual aids on workplace hazards, and lecturers for speaking engagements.

The OSHA Training Institute in Des Plaines, Illinois, provides basic and advanced
training and education in safety and health for federal and state compliance safety
and health officers; state consultants; other federal agency personnel; and private
sector employers, employees and their representatives. Course topics include
electrical hazards, machine guarding, ventilation, and ergonomics, among others.
The Institute’s facility includes classrooms, laboratories, a library and an audio-visual
unit. The laboratories contain various demonstrations and equipment, such as
power presses, woodworking and welding shops, a complete industrial ventilation
unit, and a noise demonstration laboratory. Sixty-one courses are available for
students from the private sector addressing subjects such as safety and health in
the construction industry and methods of voluntary compliance with OSHA
standards.
OSHA also provides funds to nonprofit organizations so that they can conduct
workplace training and education. OSHA annually identifies areas of unmet needs
for safety and health education in the workplace and invites grant applications to
address these needs. Grants are awarded annually.
Organizations awarded grants use the funds to develop training and educational
programs, reach out to workers and employers for whom their programs are
appropriate, and deliver the programs to employers and employees. The Training
Institute is OSHA’s point of contact for learning about the many valuable training
products and materials developed under such grants.
While OSHA does not distribute grant materials directly, it provides addresses and
telephone numbers of persons from whom the public can order such materials.
However, OSHA does provide limited lending of grant-produced audiovisual
training programs through the Resource Center Audiovisual Circulation Project.
Contact the OSHA Training Institute at 847–297–4810.
■

Consultation Assistance: Consultation assistance is available to employers who
want help in establishing and maintaining safe and healthful workplaces. Largely
funded by OSHA, the service is available in every state and territory. It is provided
at no cost to the employer. Primarily targeted toward smaller employers with more
hazardous operations, the consultation service is delivered by state government
agencies or universities employing professional safety consultants and health
consultants.
On-site OSHA consultation assistance includes an opening conference with the
employer to explain the ground rules for consultation, a walk through the workplace
to identify specific hazards and to examine those aspects of the employer’s safety
and health program that relate to the scope of the visit, and a closing conference.
Later, the consultant sends a report of findings and recommendations to the
employer.
This process begins with the employer’s request for consultation, which must
include a commitment to correct any serious job safety and health hazards
identified. The consultant will not report possible violations of OSHA standards
to OSHA enforcement staff unless the employer fails or refuses to eliminate or
control worker exposure to any identified serious hazard or imminent danger.
Should this occur, OSHA may investigate and begin enforcement action.
The employer must also agree to allow the consultant to confer freely with
employees during the on-site visit.

Additional information about consultation assistance, including a directory of
OSHA-funded consultation projects, can be obtained by requesting OSHA
publication No. 3047, Consultation Services for the Employer.
■

Information Sources: Information about state programs, VPPs, consultation
programs, and inspections can be obtained from the nearest OSHA regional, area,
or district office. Area offices are listed in local telephone directories under the
U.S. Department of Labor. Regional and area office addresses, telephone and fax
numbers can be found on the OSHA Web site (www.osha.gov/html/oshdir.html).
The OSHA Home Page (www.osha.gov) contains information on other OSHA
activities, statistics, media releases, and technical assistance, as well as links to
other safety and health Web sites. OSHA has a number of interactive advisors to
help employers comply with OSHA standards.
A single free copy of an OSHA catalog, “OSHA Publications and Audiovisual
Programs” (OSHA 2019), may be obtained by sending a self-addressed mailing
label to the U.S. Department of Labor, OSHA Publications Office, P.O. Box 37535,
Washington, DC 20013-7535; telephone 202–693–1888. This catalog contains
descriptions of and ordering information for all OSHA publications and audiovisual
programs.
A variety of information is available on OSHA’s Publications Web site, including
online publication order forms, the OSHA poster, guidance on OSHA
recordkeeping, and online access to several OSHA publications in PDF format
(www.osha.gov/pls/publications/pubindex.list).
Questions about OSHA programs, the status of ongoing standards-setting activities,
and general inquiries about OSHA may be addressed to the U.S. Department of
Labor, OSHA Office of Public Affairs, 200 Constitution Avenue NW, Room N-3637,
Washington, DC 20210; telephone 202–693–1999.

Penalties/Sanctions
Every establishment covered by the Act is subject to inspection by OSHA
compliance safety and health officers (CSHOs). These individuals, who are chosen
for their knowledge and experience in occupational safety and health, are thoroughly
trained in OSHA standards and in the recognition of occupational safety and health
hazards. In states with their own occupational safety and health plans, state CSHOs
conduct inspections.
OSHA conducts two general types of inspections, programmed and unprogrammed.
Establishments with high injury rates receive programmed inspections, while
unprogrammed inspections are used in response to fatalities, catastrophes, and
complaints (which are further addressed by OSHA’s complaint policies and
procedures). Various OSHA publications and documents detail OSHA’s policies and
procedures for inspections.
Types of violations that may be cited and the penalties that may be proposed:
■

Other-Than-Serious Violation: A violation that has a direct relationship to job
safety and health, but probably would not cause death or serious physical harm.
A proposed penalty of up to $7,000 for each violation is discretionary. A penalty
for an other-than-serious violation may be adjusted downward by as much as
95 percent, depending on the employer’s good faith (demonstrated efforts to
comply with the Act), history of previous violations, and size of business.
When the adjusted penalty amounts to less than $50, no penalty is proposed.

■

Serious Violation: A violation where a substantial probability that death or serious
physical harm could result and where the employer knew, or should have known,
of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed.
A penalty for a serious violation may be adjusted downward, based on the
employer’s good faith, history of previous violations, the gravity of the alleged
violation, and size of business.

■

Willful Violation: A violation that the employer intentionally and knowingly commits.
The employer either knows that what he or she is doing constitutes a violation, or
is aware that a hazardous condition existed and has made no reasonable effort to
eliminate it.

The Act provides that an employer who willfully violates the Act may be assessed
a civil penalty of not more than $70,000 but not less than $5,000 for each violation.
A proposed penalty for a willful violation may be adjusted downward, depending
on the size of the business and its history of previous violations. Usually no credit is
given for good faith.
If an employer is convicted of a willful violation of a standard that has resulted in
the death of an employee, the offense is punishable by a court-imposed fine or
by imprisonment for up to six months, or both. A fine of up to $250,000 for an
individual, or $500,000 for a corporation [authorized under the Omnibus Crime
Control Act of 1984 (1984 OCCA), not the OSH Act], may be imposed for a criminal
conviction.
■

Repeated Violation: A violation of any standard, regulation, rule or order where,
upon reinspection, a substantially similar violation is found. Repeated violations
can bring fines of up to $70,000 for each such violation. To serve as the basis for
a repeat citation, the original citation must be final; a citation under contest may
not serve as the basis for a subsequent repeat citation.

■

Failure to Correct Prior Violation: Failure to correct a prior violation may bring a
civil penalty of up to $7,000 for each day the violation continues beyond the
prescribed abatement date.

Additional violations for which citations and proposed penalties may be issued:
■

Falsifying Records, Reports or Applications: Upon conviction, can bring a fine
of $10,000 or up to six months in jail, or both.

■

Assaulting a CSHO: This act, or otherwise resisting, opposing, intimidating, or
interfering with a CSHO in the performance of his or her duties, is a criminal
offense, subject to a fine of not more than $250,000 for an individual and
$500,000 for a corporation (1984 OCCA) and imprisonment.

Citation and penalty procedures may differ somewhat in states with their own
OSH programs.
Appeals process:
■

Appeals by Employees: If a complaint from an employee prompted the
inspection, the employee or authorized employee representative may request
an informal review of any decision not to issue a citation.
Employees may not contest citations, amendments to citations, penalties or lack of
penalties. They may contest the time allowed in the citation for abatement of a
hazardous condition. They also may contest an employer’s Petition for Modification
of Abatement (PMA), which requests an extension of the abatement period.

Employees who wish to contest the PMA must do so within 10 working days of its
posting or within 10 working days after an authorized employee representative has
received a copy.
Within 15 working days of the employer’s receipt of the citation, the employee may
submit a written objection to OSHA regarding the abatement date. The OSHA
area director forwards the objection to the Occupational Safety and Health Review
Commission, which operates independently of OSHA.
Employees may request an informal conference with OSHA to discuss any issues
raised by an inspection, citation, notice of proposed penalty, or the employer’s
notice of intention to contest.
■

Appeals by Employers: When issued a citation or notice of a proposed penalty, an
employer may request an informal meeting with OSHA’s area director to discuss the
case. Employee representatives may be invited to attend the meeting. To avoid
prolonged legal disputes, the area director is authorized to enter into settlement
agreements that may revise citations and penalties.

■

Notice of Contest: If the employer decides to contest the citation, the time set for
abatement, or the proposed penalty, he or she has 15 working days from the time
the citation and proposed penalty are received in which to notify the OSHA area
director in writing. An orally expressed disagreement will not suffice. This written
notification is called a “Notice of Contest.”
There is no specific format for the Notice of Contest. However, it must clearly
identify the employer’s basis for contesting the citation, notice of proposed penalty,
abatement period, or notification of failure to correct violations. To better identify
the scope of the contest, it also should identify the inspection number and citation
number(s) being contested.
A copy of the Notice of Contest must be given to the employees’ authorized
representative. If any affected employees are unrepresented by a recognized
bargaining agent, a copy of the notice must be posted in a prominent location in
the workplace, or else served personally upon each unrepresented employee.
Appeal Review Procedure: If the written Notice of Contest has been filed within
15 working days, the OSHA area director forwards the case to the Occupational
Safety and Health Review Commission (OSHRC). The Commission is an
independent agency not associated with OSHA or the Department of Labor.
The Commission assigns the case to an administrative law judge.

■

The judge may disallow the contest if it is found to be legally invalid, or a
hearing may be scheduled for a public place near the employer’s workplace.
The employer and the employees have the right to participate in the hearing;
the OSHRC does not require that they be represented by attorneys.
Once the administrative law judge has ruled, any party to the case may request
a further review by OSHRC. Also, any of the three OSHRC commissioners may
individually move to bring a case before the Commission for review. Commission
rulings may be appealed to the U.S. Courts of Appeals.
■

Appeals In State-Plan States: States with their own occupational safety and health
programs have their own systems for review and appeal of citations, penalties, and
abatement periods. The procedures are generally similar to Federal OSHA’s, but a
state review board or equivalent authority hears cases.

Relation to State, Local and Other Federal Laws
The agency covers all working conditions that are not addressed by safety and
health regulations of another federal agency under other legislation. OSHA also has
the authority to monitor the safety and health of federal employees. Finally, OSHA is
also responsible for administering a number of whistleblower laws relating to safety
and health as described in the Whistleblower Protection section of this Guide
(www.dol.gov/asp/programs/guide/whistle.htm).

Mine Safety and Health
The Federal Mine Safety and Health Act of 1977
(Mine Act) (30 USC §§ 801 et seq.; 30 CFR
Parts 1 to 199)
Who is Covered
The Mine Act covers all mine operators and miners throughout the U.S., including the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, Guam, and the Trust Territory of the Pacific Islands. Under the Mine Act, a
mine “operator” is defined as: “any owner, lessee, or other person who operates,
controls, or supervises a coal or other mine or any independent contractor performing
service or construction at such mine.” A “miner” is any individual working in a coal or
other mine. At this time, the Mine Act covers approximately 300,000 miners and
almost 14,000 mines.

Basic Provisions/Requirements
The Mine Act requires that the Mine Safety and Health Administration (MSHA) inspect
all mines each year. All underground mines are to receive at least four inspections
annually; all surface operations are to be inspected at least twice annually. MSHA is
specifically prohibited from giving advance notice of an inspection, and it is
specifically authorized to enter mine property without a warrant.
The Mine Act requires or authorizes additional inspections and investigations to
ensure safe and healthy work environments for miners. For example, mines that
release large amounts of methane gas are to receive more frequent inspections;
mines determined to be exceptionally hazardous may receive more frequent
inspections. Additionally, MSHA must investigate all fatal accidents and miners’
complaints of discrimination based upon the exercise of their rights under the
Mine Act.
To promote compliance with the provisions of the Act and its safety and health
standards, all violations found during inspections and investigations must be cited.
All violations are subject to civil penalties, and all violations must be corrected within
the time frames established by MSHA.
The Mine Act permits representatives of the operator and the miners to accompany
MSHA during inspections and participate in pre- and post-inspection conferences.
If violations are cited, the circumstances surrounding the violations are discussed
during post-inspection conferences.
If these discussions do not result in resolution, the mine operator may appeal the
citation and the penalty to the Federal Mine Safety and Health Review Commission,
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

an independent body, with further appeal to the U.S. Courts of Appeals. In addition
to setting safety and health standards for preventing hazardous and unhealthy
conditions, MSHA’s regulations establish requirements for immediate notification
of accidents, injuries and illnesses; for training programs that meet the statutory
requirements of the Mine Act; and for obtaining approval for certain equipment
used in gassy underground mines.
Mine operators must notify MSHA when they open or close a mine, and they
may request the modification of an existing safety standard on a site-by-site basis.
Under the Mine Act, MSHA may approve modifications only if it determines that
the alternate method proposed will guarantee no less than the same measure of
protection afforded by the existing standards, or that the application of MSHA’s
standard at the mine will result in a diminution of safety for miners.

Employee Rights
A good safety and health program depends on the active participation and interest of
everyone at a worksite. Because Congress wants to encourage an active, responsible
role for all parties in matters of mine safety and health, the Federal Mine Safety and
Health Act of 1977 gives individual miners, their representatives, and job applicants
many rights. Deaths, injuries, and illnesses in the workplace can be decreased if all
parties take advantage of these rights.
The Act gives miners the rights to:
■

Designate a representative to accompany federal inspectors during inspections at
a mine;

■

Obtain an inspection of the mine where reasonable grounds exist to believe that
an imminent danger, or a violation of the Act or of a safety or health standard exists;

■

Receive health and safety training;

■

Be paid during certain periods of time when a mine or part of a mine has been
closed because of a withdrawal order;

■

Be protected against discrimination based on the exercise of rights under the Act;
and

■

Be informed of, and participate in, enforcement and legal proceedings under
the Act.

Miners’ representatives also have specific rights under the Act in addition to those
rights given to individual miners. Moreover, applicants for mine work have the right
not be discriminated against in hiring because they have previously exercised rights
provided under the Act.
If a miner, representative of miners, or job applicant, has general or specific questions
about rights under the Act, he or she should contact the nearest MSHA office.
The MSHA Web site (www.msha.gov) lists locations and telephone numbers for
its offices nationwide.

Compliance Assistance Available
MSHA develops safety and health training programs in cooperation with industry and
labor, tests new mining equipment, works with other agencies to advance safety and
health research programs, and compiles and analyzes accident, injury and illness data
to better address serious workplace hazards.
31

MSHA has developed booklets, pamphlets and pocket-size laminated cards, which
address known safety and health hazards and identify acceptable compliance
processes. MSHA routinely distributes its accident prevention materials to the mining
industry at large, or to those sectors of the industry that are experiencing the injuries
addressed by the materials.
MSHA’s Web site (www.msha.gov) contains compliance assistance information,
guidance, and helpful tips for the mining community. For example, it lists upcoming
seminars designed for mine operators and others to receive the latest information
about the requirements of a rule or to hear about solutions to various safety and health
problems.
Also, the Web site provides model forms, records, and plans for the mine operator to
use to comply with MSHA requirements, thus avoiding the need for the operator to
create these items independently. Through the Web site, mine operators may file
various reports directly with MSHA.
The Mine Act authorizes a state grants program, funded at about $7.6 million annually,
which MSHA administers. MSHA works with the states to stimulate the development
of individual state programs that focus on identifiable safety and health problems.
Many of the states use the grants for education and training, particularly for smaller
mining operations that cannot provide updated, effective training.
MSHA’s Mine Health and Safety Academy, located in Beckley, West Virginia, develops
and provides safety and health training courses for its own inspectors as well as for
industry and labor. A “Mine Simulation Laboratory”, located on the Academy
grounds, provides hands-on training in rescue and recovery operations for certain
mine emergencies.
MSHA’s Approval and Certification Center (A&CC), located near Wheeling, West
Virginia, houses laboratories, equipment and personnel to test equipment that must
be approved before it can be used in certain areas of gassy underground mines.
The A&CC also is responsible for monitoring the performance of approved products
to ensure that they meet the standards under which they were originally approved.
A variety of information on MSHA’s programs, as well as its existing and proposed
standards, can be found on MSHA’s Web site. Also, MSHA has a number of elaws
Advisors (www.dol.gov/elaws) that provide assistance in understanding and applying
MSHA’s regulations.
MSHA maintains a 24-hour toll-free telephone number that can be used to report
accidents. That number is 1–800–746–1553. MSHA maintains another toll-free
number to report hazardous conditions. That number is 1–800–746–1554, and the
caller need not identify himself or herself. The appropriate district office also can
be contacted.
Additional information about MSHA, its programs and policies may be obtained
from the MSHA Office of Information, Room 601, 4015 Wilson Boulevard, Arlington,
Virginia, 22203-1984. The telephone number is 202–693–9422.

Penalties/Sanctions
The Mine Act established a maximum penalty of $10,000 per violation against
mine operators for violations found and cited. As a result of the Omnibus Budget
Reconciliation Act of 1990, the maximum was increased to $55,000.

Non-serious violations (violations that are not designated “significant and substantial”)
that are promptly corrected normally receive a “single penalty” assessment of $55.
More serious violations and non-serious violations that are not promptly corrected are
usually assessed using a formula that incorporates six criteria specified for determining
penalty amounts by the Mine Act.
Some violations are of such a nature or seriousness that use of the formula would
not result in an appropriate penalty. In these cases—most often involving fatalities,
serious injuries, and unwarranted failure to comply with standards— MSHA may waive
the formula and propose a “special assessment.” In developing such an amount, the
facts are independently reviewed to determine a penalty amount that will have the
deterrent effect contemplated by the Statute. Title 30, Part 100 of the Code of
Federal Regulations contains the regulations governing the civil penalty process.
The Mine Act also provides for either civil penalties against individuals for “knowing”
violations, or criminal sanctions against mine operators who “willfully” violate safety
and health standards. MSHA reviews particular citations and orders for possible
knowing or willful violations. In general, the violations reviewed include those
involving imminently dangerous situations and a high degree of negligence or
reckless disregard. MSHA initiates and conducts investigations of possible knowing
or willful violations. If evidence of willful violations is found, the case is referred to
the Department of Justice.

Relation to State, Local and Other Federal Laws
The Mine Act does not give MSHA the authority to cede its responsibilities to states
or any other political subdivisions. The Mine Act does not preempt state mine safety
and health laws, except insofar as they may conflict with the Mine Act or MSHA’s
regulations. States may have more stringent health and safety standards.

Employee Benefit Plans
Employee Retirement Income Security Act
(ERISA), (29 USC §1001 et seq.,
29 CFR 2509 et seq.)
Who is Covered
The provisions of Title I of ERISA cover most private sector employee benefit plans.
Such plans are voluntarily established and maintained by an employer, an employee
organization, or jointly by one or more such employers and an employee
organization.
Pension plans — a type of employee benefit plan — are established and maintained
to provide retirement income or to defer income until termination of covered
employment or beyond. Other employee benefit plans, called welfare plans, are
established and maintained to provide health benefits, disability benefits, death
benefits, prepaid legal services, vacation benefits, day care centers, scholarship
funds, apprenticeship and training benefits, or other similar benefits.
In general, ERISA does not cover plans established or maintained by government
entities or churches for their employees, or plans which are maintained solely to
comply with workers’ compensation, unemployment or disability laws. ERISA also
does not cover plans maintained outside the U.S. primarily for the benefit of
nonresident aliens or unfunded excess benefit plans.

Basic Provisions/Requirements
ERISA sets uniform minimum standards to ensure that employee benefit plans are
established and maintained in a fair and financially sound manner. In addition,
employers have an obligation to provide promised benefits and satisfy ERISA’s
requirements for managing and administering private pension and welfare plans.
The Department’s Employee Benefits Security Administration (EBSA), together with
the Internal Revenue Service (IRS), has the statutory and regulatory authority to ensure
that workers receive the promised benefits. The Department has principal jurisdiction
over Title I of ERISA, which requires persons and entities that manage and control plan
funds to:
■

Manage plans for the exclusive benefit of participants and beneficiaries;

■

Carry out their duties in a prudent manner and refrain from conflict-of-interest
transactions expressly prohibited by law;

■

Comply with limitations on certain plans’ investments in employer securities and
properties;

■

Fund benefits in accordance with the law and plan rules;

■

Report and disclose information on the operations and financial condition of plans
to the government and participants; and

■

Provide documents required in the conduct of investigations to ensure compliance
with the law.

The Department also has jurisdiction over the prohibited transaction provisions of Title
II of ERISA. However, the IRS generally administers the rest of Title II of ERISA, as well
as the standards of Title I of ERISA that address vesting, participation,
nondiscrimination and funding.
Reporting and Disclosure. Any individual or organization affected by ERISA may
request an advisory opinion or information letter about the interpretation or application
of the statutory provisions (or the implementing regulations, interpretive bulletins or
exemptions) within the Department’s jurisdiction. ERISA Procedure 76-1, 41 Federal
Register 36281 (August 27, 1976) sets forth the procedures governing the advisory
opinion process.
Part 1 of Title I requires the administrator of an employee benefit plan to furnish
participants and beneficiaries with a summary plan description (SPD), clearly
describing their rights, benefits and responsibilities under the plan. Plan administrators
must also furnish participants with a summary of any material changes to the plan or
changes to the information contained in the SPD. Copies of these documents need
not be automatically filed with the Department, but they must be furnished to the
Department on request.
In addition, the administrator generally must file an annual report (Form 5500 Series)
each year containing financial and other information about the operation of the plan.
Plan administrators filing annual reports must furnish participants and beneficiaries
with a summary of the information in the annual report (the Summary Annual Report).
Certain pension and welfare benefit plans may be exempt from the requirement to file
an annual report. For example, welfare benefit plans with fewer than 100 participants
that are fully insured or unfunded within the meaning of the Department’s regulation
at 29 CFR 2520.104-20 are not required to file an annual report.
The Department’s regulations governing these reporting and disclosure requirements
are set forth beginning at 29 CFR 2520.101-1.
Fiduciary Standards. Part 4 of Title I sets forth standards and rules for the conduct of
plan fiduciaries. In general, persons who exercise discretionary authority or control
over management of a plan or disposition of its assets are “fiduciaries” for purposes
of Title I of ERISA. Fiduciaries are required, among other things, to discharge their
duties solely in the interest of plan participants and beneficiaries and for the exclusive
purpose of providing benefits and defraying reasonable expenses of administering
the plan. In discharging their duties, fiduciaries must act prudently and in accordance
with documents governing the plan, to the extent such documents are consistent
with ERISA.
ERISA prohibits certain transactions between an employee benefit plan and “parties
in interest,” which include the employer and others who may be in a position to
exercise improper influence over the plan, and such transactions may trigger civil
monetary penalties under Title I of ERISA. The Internal Revenue Code (“Code”) also
prohibits most of these transactions, and it imposes an excise tax on “disqualified
persons” (whose definition generally parallels that of parties in interest) who
participate in such transactions.
35

Exemptions. Both ERISA and the Code contain various statutory exemptions from
the prohibited transaction rules and give the Departments of Labor and Treasury,
respectively, authority to grant administrative exemptions and establish exemption
procedures. Reorganization Plan No. 4 of 1978 transferred the Treasury Department’s
authority over prohibited transaction exemptions to the Labor Department, with
certain exceptions.
The statutory exemptions generally include loans to participants, the provision of
services needed to operate a plan for reasonable compensation, loans to employee
stock ownership plans, and investment with certain financial institutions regulated
by other state or federal agencies. (See ERISA Section 408 for the conditions of the
exemptions.) The Department of Labor may grant administrative exemptions on a
class or individual basis for a wide variety of proposed transactions with a plan.
Applications for individual exemptions must include, among other information:
■

A detailed description of the exemption transaction and the parties for whom
an exemption is requested;

■

The reasons a plan would have for entering into the transaction;

■

The percentage of assets involved in the exemption transaction;

■

The names of persons with investment discretion;

■

The extent of plan assets already invested in loans to, property leased by, and
securities issued by parties in interest involved in the transaction;

■

Copies of all contracts, agreements, instruments and relevant portions of plan
documents and trust agreements bearing on the exemption transaction;

■

Information about plan participation in pooled funds when the exemption
transaction involves such funds;

■

A declaration by the applicant, under penalty of perjury, attesting to the truth of
representations made in such exemption submissions; and

■

Statement of consent by third-party experts acknowledging that their statement
is being submitted to the Department as part of an exemption application.

The Department’s exemption procedures are set forth at 29 CFR 2570.30 through
2570.51.
Continuation of Health Coverage. The Consolidated Omnibus Budget Reconciliation
Act of 1985 (COBRA) included provisions for continuing health care coverage. These
provisions, which are codified in Part 6 of Title I of ERISA, apply to group health plans
of employers with 20 or more employees on a typical working day in the previous
calendar year.
COBRA gives “qualified beneficiaries” (a covered employee’s spouse and dependent
children) the right to maintain, at their own expense, coverage under their health plan
that would be lost due to a “qualifying event”, such as termination of employment, at
a cost comparable to what it would be if they were still members of the employer’s
group.
Plans must give covered individuals an initial general notice informing them of their
rights under COBRA and describing the law. The law also obliges plan administrators,
employers, and qualified beneficiaries to provide notice of certain “qualifying events.”
In most instances of employee death, termination, reduced hours of employment,

entitlement to Medicare, or bankruptcy, the employer must provide a specific notice
to the plan administrator. The plan administrator must then advise the qualified
beneficiaries of the opportunity to elect continuation coverage.
The Department’s regulatory and interpretive jurisdiction over the COBRA provisions
is limited to the COBRA notification and disclosure provisions.
Jurisdiction of the Internal Revenue Service. The IRS has regulatory and interpretive
responsibility for all provisions of COBRA not under the Department’s jurisdiction. In
addition, the IRS generally administers and interprets the ERISA provisions relating to
participation, vesting, funding and benefit accrual, contained in parts 2 and 3 of Title I.
Health Insurance Portability and Accounting Act of 1996. The Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, was enacted
on August 21, 1996. HIPAA amended ERISA to provide for improved portability
and continuity of health insurance coverage connected with employment, among
other things.
The HIPAA portability provisions relating to group health plans and health insurance
coverage offered in connection with group health plans are set forth under a new
Part 7 of Subtitle B of Title I of ERISA. These provisions include rules relating to
exclusions of preexisting conditions, special enrollment rights, and prohibition of
discrimination against individuals based on health status-related factors.
The Newborns’ and Mothers’ Health Protection Act of 1996, signed into law on
September 26, 1996, requires plans that offer maternity coverage to pay for at least a
48 hour hospital stay following childbirth (a 96 hour stay when a cesarean section is
performed).
The Women’s Health and Cancer Rights Act, signed into law on October 21, 1998,
contains protection for patients who elect breast reconstruction in connection with a
mastectomy. For plan participants and beneficiaries receiving benefits in connection
with a mastectomy, plans offering coverage for a mastectomy must also cover
reconstructive surgery and other benefits related to a mastectomy.

Employee Rights
The Act grants employees several important rights. Among them are the right to
receive important information about their pension or health benefit plans, to
participate in timely and fair processes for benefit claims, to elect to temporarily
continue group health coverage after losing coverage, to receive certificates verifying
health coverage under a plan, and to recover benefits due under the plan.

Compliance Assistance Available
EBSA has numerous general publications designed to help employers and employees
understand their obligations and rights under ERISA. A list of EBSA booklets and
pamphlets is available by writing to: U.S. Department of Labor, Publications Desk,
EBSA, Division of Public Affairs, Room N-5656, 200 Constitution Avenue NW,
Washington, DC 20210. Many of these documents are available from EBSA’s
Home Page (www.dol.gov/ebsa), and through EBSA’s toll-free publications line
at 1–800–998–7542.
The elaws Small Business Retirement Savings Advisor (www.dol.gov/elaws) provides
answers to a variety of questions about retirement savings options for small business
employers and indicates which program is most appropriate for a business.

EBSA’s national and field offices offer individualized assistance for persons seeking
information and assistance on benefits and rights under employee benefit plans.
EBSA also issues advisory opinions and information letters in response to requests
from individuals and organizations. Advisory opinions apply the law to a specific set
of facts, while information letters merely call attention to well-established principles
or interpretations. Further information about these programs is contained in EBSA’s
booklet on “Customer Service Standards.”
In addition, employee benefit plan documents and other materials are available from
the EBSA Public Disclosure Room. This facility may be used to view and to obtain
copies of materials on file. Materials include: summary plan descriptions, Form 5500
Series reports, Master Trust reports, 103-12 Investment Entity Reports, Common or
Collective Trust or Pooled Separate Account direct filings, Apprentice and Other
Training Plans notices, “Top Hat” plan statements, advisory opinions, exemptions,
announcements and transcripts of public hearings and proceedings.
The EBSA Public Disclosure Room is open to the public Monday through Friday, from
8:30 a.m. to 4:30 p.m. Copies of materials are available at a cost of 15 cents per page
by ordering in person or writing to: U.S. Department of Labor, EBSA Public Disclosure
Room, Room N-1513, 200 Constitution Avenue NW, Washington, DC 20210. Given
the complexity of ERISA requirements, employers may wish to seek the assistance
of an attorney, CPA firm, investment or brokerage firm, and other employee benefit
consultants.

Penalties/Sanctions
ERISA confers substantial law enforcement responsibilities on the Department. Part 5
of Title I of ERISA gives the Department authority to bring a civil action to correct
violations of the law, provides investigative authority to determine whether any person
has violated Title I, and imposes criminal penalties on any person who willfully violates
any provision of Part 1 of Title I.
EBSA has authority under ERISA Section 502(c)(2) to assess civil penalties for
reporting violations. A penalty of up to $1,000 per day may be assessed against
plan administrators who fail or refuse to comply with annual reporting requirements.
Section 502(i) gives the agency authority to assess civil penalties against parties in
interest who engage in prohibited transactions with welfare and nonqualified pension
plans. The penalty can range from five percent to 100 percent of the amount involved
in a transaction.
A parallel provision of the Code directly imposes an excise tax against disqualified
persons, including employee benefit plan sponsors and service providers, who
engage in prohibited transactions with tax-qualified pension and profit sharing plans.
Finally, Section 502(l) requires the Department to assess mandatory civil penalties
equal to 20 percent of any amount recovered with respect to fiduciary breaches
resulting from either a settlement agreement with the Department or a court order
as the result of a lawsuit by the Department.

Relation to State, Local and Other Federal Laws
Part 5 of Title I states that the provisions of ERISA Titles I and IV supersede state and
local laws which “relate to” an employee benefit plan. ERISA, however, does not
preempt certain state and local laws, including state insurance regulation of multiple
employer welfare arrangements (MEWAs). MEWAs generally constitute employee
welfare benefit plans or other arrangements providing welfare benefits to employees
of more than one employer, not pursuant to a collective bargaining agreement.
In addition, ERISA’s general prohibitions against assignment or alienation of pension
benefits do not apply to qualified domestic relations orders. Plan administrators
must comply with the terms of qualifying orders made pursuant to state domestic
relations law that award all or part of a participant’s benefit in the form of child
support, alimony, or marital property rights to an alternative payee (spouse, former
spouse, child or other dependent). Finally, group health plans covered by ERISA
must provide benefits in accordance with the requirements of qualified medical
child support orders issued under state domestic relations laws.

Black Lung Compensation
Title IV, Federal Mine Safety and Health Act
of 1977, as amended (30 USC §901 et seq.;
20 CFR 718, 722, 725, 726, 727)
Who is Covered
The Black Lung Benefits Act (BLBA) provides for monthly payments to and medical
treatment for coal miners totally disabled from pneumoconiosis (black lung disease)
arising from employment in or around the nation’s coal mines. The BLBA also provides
for augmented payments to miners based on the number of his or her dependents
and to certain survivors of miners who died due to or while totally disabled from
pneumoconiosis.
Each coal mine operator is required to pay an excise tax, based on the operator’s
tonnage and price of coal sold, to support payment of benefits to miners under the
Act and the cost of administering the Act. In addition, operators must provide for
the payment of benefits to miners, either directly or through insurance, when they
are the responsible employer of the miners.
For purposes of determining responsibility for paying benefits, a coal mine operator
includes: (1) any owner, lessee or other person who operates, controls, or supervises
a coal mine or preparation plant, or (2) any independent contractor performing
services or construction at a mine, or (3) companies transporting coal from mines to
preparation plants.

Basic Provisions/Requirements
Current and former coal miners (including certain coal transportation and coal mine
construction workers who were exposed to coal mine dust), and their surviving
dependents, including surviving spouses, orphaned children, and totally dependent
parents, brothers and sisters, may file claims for black lung benefits.
Basic monthly benefits for a totally disabled miner or his or her surviving spouse, as
well as for claimants with qualified dependents, can be found at www.dol.gov/esa/
regs/compliance/owcp/blbene2k.htm. Benefit payments are reduced by the
amounts received for pneumoconiosis under state workers’ compensation awards
and by excess earnings in some cases. Benefits rates are adjusted periodically
according to the percentage increase of federal pay rates.
Medical payments are limited to the treatment of conditions directly related to black
lung disease, and only totally disabled former miners can qualify for this benefit.
The Act covers certain medical, surgical and other expenses, such as hospital and
nursing care, rehabilitation services, and drug and equipment charges.

The Black Lung Disability Trust Fund pays the cost of black lung claims: (1) where
the miner’s last coal mine employment was before January 1, 1970; or (2) where no
responsible coal mine operator has been identified in claims where the miner’s last
coal employment was after December 31, 1969; or (3) where the responsible coal
mine operator has defaulted on the payment of such benefits.
Coal mine operators identified as responsible for claims based on employment after
1970 must provide for the required benefits either directly or through insurance.
A tax paid by coal mine operators on each ton sold supports the Trust Fund.
The current rate is $1.10 per ton for underground-mined coal and $.55 for surfacemined coal, subject to a cap of 4.4 percent of the sales price.
Coal mine operators may secure payment of benefits for which they are liable
either by qualifying as a self-insurer or by obtaining insurance through a commercial
insurance carrier or a state agency. Operators must obtain approval from the
Department of Labor to become self-insurers. To qualify, they must have been in
the business of coal mining for at least three years, demonstrate the ability to service
black lung claims and agree to service claims in a timely manner, meet minimum asset
requirements, and obtain an indemnity bond or post other security to secure payment
of benefits, among other things. Operators may appeal a denial to self-insure to the
Department of Labor. When operators obtain commercial insurance, their obligations
with regard to payment of benefits and provision of medical treatment are binding on
the insurance carriers.
Coal mine operators are required to begin paying benefits within 30 days of a final
determination of their liability for the benefits. Where payment is made from the Trust
Fund pending appeal of a claim and final determination, operators must reimburse the
Trust Fund.

Employee Rights
If an employee, or his or her survivor, or an employer disagrees with a claim
determination by the Division of Coal Mine Workers’ Compensation, that party may
request a formal hearing before an administrative law judge. The administrative law
judge’s decision may be appealed to the Benefits Review Board, and the Benefits
Review Board’s decision may be appealed to the U.S. Court of Appeals and finally
to the U.S Supreme Court.

Compliance Assistance Available
To obtain additional information, contact the nearest Black Lung district office.
These offices are listed in the local telephone books under U.S. Government,
Department of Labor, Employment Standards Administration, Office of Workers’
Compensation Programs, Division of Coal Mine Workers’ Compensation.
Questions about insurance and self-insurance requirements should be addressed to:
U.S. Department of Labor, ESA/OWCP/DCMWC, Branch of Standards, Regulations and
Procedures, Responsible Operator Section, Room C-3526, 200 Constitution Avenue
NW, Washington, DC 20210.
The telephone number is 202–693–0047, and the fax number is 202–693–1398.
The Black Lung Home Page is located at www.dol.gov/esa/regs/compliance/
owcp/bltable.htm.

Penalties/Sanctions
The Department of Labor may suspend or revoke the authority to self-insure due to
an operator’s failure to comply with the Act and its regulations, the insolvency of its
surety on an indemnity bond, or impairment of the operator’s financial responsibility.
Revocation of the authority to self-insure or the failure to obtain insurance does
not relieve operators of liability for payment of benefits and provision of medical
treatment. Operators who fail to secure insurance may be subject to a civil money
penalty of $1,000 for each day insurance is not in effect.
A lien may be placed against the property of operators who fail to pay benefits
for which they have been determined liable or to reimburse the Trust Fund. The
Department of Labor may also seek an injunction in U.S. District Court to ensure that
such obligations are met and to prevent future noncompliance. Operators are also
subject to payment of interest on the benefit payments or Trust Fund reimbursements
owed, and they may be assessed an additional 20 percent of the amount due, which
is payable to the claimant.
Operators who knowingly conceal or dispose or any property to avoid the payment
of benefits under the Act may be guilty of a misdemeanor and, if convicted, subject
to a fine of $1,000, imprisonment for up to one year, or both.

Relation to State, Local and Other Federal Laws
Federal black lung benefits are offset by state workers’ compensation benefits for the
same disease. If state black lung benefits are less than federal black lung benefits,
then the federal black lung program covers the difference. Social Security disability
benefits are also reduced by the amount of black lung benefits received.

Longshore and Harbor Workers’
Compensation
Longshore and Harbor Workers’ Compensation
Act (LHWCA) (33 USC § 901 et seq.;
20 CFR 701-704)
Who is Covered
The Longshore and Harbor Workers’ Compensation Act (LHWCA) provides for
compensation and medical care to employees disabled from injuries that occur on
the navigable waters of the U.S., or in adjoining areas used in loading, unloading,
repairing or building a vessel. The Act also offers benefits to dependents if the injury
causes the employee’s death. The term “injury” includes occupational disease arising
out of employment.
The Act covers workers employed in maritime occupations, including longshore
workers or other persons in longshore operations, and any harbor workers, including
ship repairers, shipbuilders, and shipbreakers. The Act excludes the following
individuals if they are covered by a state workers’ compensation law: office employees,
certain retail and service employees, small vessel workers and individuals engaged in
repairing certain recreational vessels, and masters or members of a crew of any vessel.
Employers of covered employees are responsible for insuring the payment of
compensation and medical benefits to injured employees. Private insurance carriers
or employers who are authorized by the Department of Labor to become self-insured
provide this insurance. While a Special Fund administered by the Department of
Labor may pay benefits in certain circumstances, authorized insurance carriers and
self-insured employers fund most benefits under the LSHCA. ESA’s Office of Workers’
Compensation Programs (OWCP) administers the Act.
In addition to longshore and other maritime workers, the LHWCA covers a variety of
other employees through several extensions to the Act. The District of Columbia
Workmen’s Compensation Act (enacted in 1928 and repealed effective July 26, 1982)
provides benefits for employees in private employment in the District of Columbia
who sustain injuries or illnesses as a result of employment prior to July 26, 1982.
(Workers injured after this date are provided for under a workers’ compensation act
administered by the District of Columbia Government.)
Also, the Defense Base Act (1941) covers employees of U.S. contractors outside the
continental U.S., Alaska and Hawaii, while the Nonappropriated Fund Instrumentalities
Act (1952) provides for benefits for civilian employees of post exchanges, service
clubs, etc. of the Armed Forces. The Outer Continental Shelf Lands Act (1953)
provides coverage to employees of private industry conducting certain operations
on the Outer Continental Shelf of the U.S.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Basic Provisions/Requirements
An injured employee is eligible to receive compensation for disability at the rate of
66 2/3 percent of the employee’s average weekly wage, subject to the specified
maximum in effect at the time of injury, for as long as the effects of the injury
continue. Compensation is also available for permanent impairment of specified
limbs and organs and to replace loss of earning capacity.
Benefits are paid to a widow or widower, or other eligible survivors, at the rate of
50 percent of the national average weekly wage as determined by Secretary of
Labor, applicable at the time of injury, or the employee’s full wage, if less.
The maximum compensation rate is 200 percent of the current national average
weekly wage as determined by Secretary of Labor, applicable at the time of injury,
or the employee’s full average weekly wage, whichever is less. Current benefit
levels are found at www.dol.gov/esa/owcp/dlhwc/NAWWinfo.htm.
Within 10 days from the date of an employee’s injury or death, or 10 days from the
date an employer has knowledge of an employee’s injury or death, including any
disease or death proximately caused by the employment, the employer must furnish
a report to the district director for the compensation district in which the injury or
death occurred, and thereafter furnish additional or supplemental reports as the
district director may request.
No report is to be filed unless the injury causes the employee to lose one or more
shifts from work. However, the employer must keep records containing the following
information: (1) the name, address, and occupation of the employer; (2) the name,
address, and occupation of the employee; (3) the cause, nature, and other relevant
circumstances of the injury or death; (4) the year, month, day, and hour when, and
the particular locality where, the injury or death occurred; and (5) such other
information as OWCP may require.
Every employer shall maintain adequate records of injuries sustained by employees,
including information on the disease, other impairments or disabilities, or death
relating to the injury. Employers must make such records available for inspection by
OWCP or by any state authority, and they should retain records for three years after
the date of injury.
Employers must secure insurance for workers’ compensation coverage under the Act,
either through an authorized insurance carrier or by obtaining approval to self-insure
from OWCP. To self-insure, the employer must furnish OWCP with proof of his or her
ability to pay compensation directly and deposit security in the form of an indemnity
bond or negotiable securities.
Once insurance has been obtained, the employer may request a certificate from the
district director in the compensation district where he or she has operations, showing
that payment of compensation has been secured. Only one certificate will be issued
to an employer in a compensation district, and it will be valid only during the period
for which the employer has secured such payment.
When an employer obtains insurance through a private insurance carrier, the
employer’s obligation to pay monetary benefits and provide medical benefits is
binding on the insurance carrier.
The employer or insurance carrier must pay compensation payments periodically,
promptly and directly to the person entitled to benefits under the Act.

An employer may apply to OWCP for an exemption to coverage by certifying a
particular facility as one engaging in building, repairing or dismantling of small vessels
exclusively and not receiving a federal maritime subsidy. (Small vessels are defined
as commercial barges which are under 900 lightship displacement tons (long) or a
commercial tugboat, towboat, crewboat, supply boat, fishing vessel or other work
vessel which is under 1,600 tons gross.)
Once a facility is certified, injuries sustained there would not be covered under the
Act except for injuries which occur over the navigable waters of the U.S., including
any adjoining pier, wharf, dock, or facility over the land for launching vessels.
A facility otherwise covered under the Act remains covered until certification of
exemption is issued. This exemption from coverage is not intended for use by
employers whose facilities are used exclusively to work on small vessels.
The Special Fund was established so that, under certain circumstances, the
employer’s liability is limited if an employee has a pre-existing permanent partial
disability. In these cases, benefits are paid from the Special Fund after 104 weeks.
For OWCP to make this determination, the employer must request limitation of its
liability and file a fully documented application with OWCP as soon as the claimant’s
condition becomes known or is an issue in dispute.
An employer may not discharge or in any manner discriminate against an employee
because he or she has claimed or attempted to claim compensation, or has
participated in a proceeding under this Act. This prohibition does not prevent
discharge of or refusal to employ a person who has been found to have filed a
fraudulent claim for compensation or who has otherwise made a false statement or
misrepresentation.

Employee Rights
If an employee or his or her survivor(s), or an employer or insurance carrier,
disagrees with a recommendation of OWCP, a formal hearing may be requested
before an administrative law judge. The administrative law judge’s decision may in
turn be appealed to the Benefits Review Board. Appeal from the Benefits Review
Board’s decision may be taken to the U.S. Court of Appeals and finally to the U.S.
Supreme Court.

Compliance Assistance Available
To obtain additional information, contact the nearest OWCP District Office. Offices
are listed in local telephone books under U.S. Government, Department of Labor,
Office of Workers’ Compensation Programs. Further assistance can be obtained from
OWCP’s Division of Longshore and Harbor Workers’ Compensation (www.dol.gov/esa/
owcp/dlhwc/lstable.htm).

Penalties/Sanctions
If any installment of compensation payable without an award is not paid within
14 days after it becomes due, an additional 10 percent will be added to the unpaid
installment. OWCP can waive the additional 10 percent payment if the employer
contacts OWCP and explains why the installment payment was late. The employer
must also contact OWCP whenever it begins or suspends payments.
OWCP may suspend or revoke the authorization of any self-insurer. Failure by a
self-insurer to comply with any provision or requirement of law or regulations, failure
45

or insolvency of the surety on his or her indemnity bond, or impairment of financial
responsibility are deemed good causes for suspension or revocation.
Any employer who fails to secure coverage by authorized insurance carriers or by
becoming an authorized self-insurer is subject, upon conviction, to a fine of not
more than $10,000, or by imprisonment for not more than one year, or both.
Any employer who discriminates against an employee may be subject to a penalty
of not less than $1,000 or more than $5,000, and may be required to restore
that employee to his or her employment along with all wages lost due to the
discrimination unless that employee is no longer qualified to perform the duties
of the employment.

Relation to State, Local and Other Federal Laws
Compensation benefits received under other state or federal compensation laws
for the same injury are offset against benefits paid under the Act.

Family and Medical Leave
Family and Medical Leave Act of 1993 (FMLA)
(29 USC §2601 et seq.; 29 CFR 825)
Who is Covered
The Family and Medical Leave Act (FMLA) provides a means for employees to
balance their work and family responsibilities by taking unpaid leave for certain
reasons. The Act is intended to promote the stability and economic security of
families as well as the nation’s interest in preserving the integrity of families.
The FMLA applies to any employer in the private sector who engages in commerce,
or in any industry or activity affecting commerce, and who has 50 or more employees
each working day during at least 20 calendar weeks in the current or preceding
calendar year.
The law covers all public agencies (state and local governments) and local education
agencies (schools, whether public or private). These employers do not need to
meet the “50 employee” test. Title II of FMLA covers most federal employees, who
are subject to regulations issued by the Office of Personnel Management.
To be eligible for FMLA leave, an individual must (1) be employed by a covered
employer and work at a worksite within 75 miles of which that employer employs
at least 50 people; (2) have worked at least 12 months (which do not have to be
consecutive) for the employer; and (3) have worked at least 1,250 hours during the
12 months immediately before the date FMLA leave begins.

Basic Provisions/Requirements
The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave
during any 12-month period for the following reasons:
■

Birth and care of the employee’s child, or placement for adoption or foster care
of a child with the employee;

■

Care of an immediate family member (spouse, child, parent) who has a serious
health condition; or

■

Care of the employee’s own serious health condition.

If an employee was receiving group health benefits when leave began, an employer
must maintain them at the same level and in the same manner during periods of FMLA
leave as if the employee had continued to work. Usually, an employee may elect
(or the employer may require) the use of any accrued paid leave (vacation, sick,
personal, etc.) for periods of unpaid FMLA leave.

Employees may take FMLA leave in blocks of time less than the full 12 weeks on an
intermittent or reduced leave basis when medically necessary. Taking intermittent
leave for the placement, adoption, or foster care of a child is subject to the
employer’s approval. Intermittent leave taken for the birth and care of a child is also
subject to the employer’s approval except for pregnancy-related leave that would
be leave for a serious health condition.
When the need for leave is foreseeable, an employee must give the employer at
least 30 days notice, or as much notice as is practicable. When the leave is not
foreseeable, the employee must provide such notice as soon as possible.
An employer may require medical certification of a serious health condition from
the employee’s health care provider. An employer may also require periodic reports
during the period of leave of the employee’s status and intent to return to work, as
well as “fitness-for-duty” certification upon return to work in appropriate situations.
An employee who returns from FMLA leave is entitled to be restored to the same or
an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.).
The employee is not entitled to accrue benefits during periods of unpaid FMLA leave,
but the employer must return him or her to employment with the same benefits at the
same levels as existed when leave began.
Employers are required to post a notice for employees outlining the basic provisions
of FMLA and are subject to a $100 civil money penalty per offense for willfully failing
to post such notice. Employers are prohibited from discriminating against or
interfering with employees who take FMLA leave.

Employee Rights
The FMLA provides that eligible employees of covered employers have a right to take
up to 12 weeks of job-protected leave in any 12-month period for qualifying events
without interference or restraint from their employers. The FMLA also gives employees
the right to file a complaint with the Wage and Hour Division, file a private lawsuit
under the Act (or cause a complaint or lawsuit to be filed), and testify or cooperate
in other ways with an investigation or lawsuit without being fired or discriminated
against in any other manner.

Compliance Assistance Available
The Wage and Hour Division of the Employment Standards Administration
administers FMLA. More detailed information, including copies of explanatory
brochures, may be obtained by contacting the local Wage and Hour offices.
In addition, the Wage and Hour Division has developed the elaws Family and Medical
Leave Act Advisor (www.dol.gov/elaws), which is an online resource that answers
a variety of commonly asked questions about FMLA, including employee eligibility,
valid reasons for leave, notification responsibilities of employers and employees,
and rights and benefits of employees. Compliance assistance information is also
available from the Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Employees and other persons may file complaints with the Employment Standards
Administration (usually through the nearest office of the Wage and Hour Division).
The Department of Labor may file suit to ensure compliance and recover damages if

a complaint cannot be resolved administratively. Employees also have private rights
of action, without involvement of the Department of Labor, to correct violations and
recover damages through the courts.

Relation to State, Local and Other Federal Laws
A number of states have family leave statutes. Nothing in the FMLA supersedes a
provision of state law that is more beneficial to the employee, and employers must
comply with the more beneficial provision. Under some circumstances, an employee
with a disability may have rights under the Americans with Disabilities Act.

Lie Detector Tests
Employee Polygraph Protection Act of 1988
(EPPA) (29 USC §2001 et seq.; 29 CFR 801)
Who is Covered
The Employee Polygraph Protection Act (EPPA) applies to most private employers.
The law does not cover federal, state and local governments.

Basic Provisions/Requirements
The EPPA prohibits most private employers from using lie detector tests, either for
pre-employment screening or during the course of employment.
Employers generally may not require or request any employee or job applicant to take
a lie detector test, or discharge, discipline, or discriminate against an employee or job
applicant for refusing to take a test or for exercising other rights under the Act.
Employers may not use or inquire about the results of a lie detector test or discharge
or discriminate against an employee or job applicant on the basis of the results of a
test, or for filing a complaint, or for participating in a proceeding under the Act.
Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be
administered to certain job applicants of security service firms (armored car, alarm,
and guard) and of pharmaceutical manufacturers, distributors and dispensers.
Subject to restrictions, the Act also permits polygraph testing of certain employees of
private firms who are reasonably suspected of involvement in a workplace incident
(theft, embezzlement, etc.) that resulted in specific economic loss or injury to the
employer.
Where polygraph examinations are allowed, they are subject to strict standards
for the conduct of the test, including the pretest, testing and post-testing phases.
An examiner must be licensed and bonded or have professional liability coverage.
The Act strictly limits the disclosure of information obtained during a polygraph test.

Employee Rights
The EPPA provides that employees have a right to employment opportunities without
being subjected to lie detector tests, unless a specific exemption applies. The Act
also provides employees the right to file a lawsuit for violations of the Act. In addition,
the Wage and Hour Division accepts complaints of alleged EPPA violations.

Compliance Assistance Available
The Wage and Hour Division of the Employment Standards Administration administers
and enforces the Act. More detailed information, including copies of explanatory
brochures and regulatory and interpretative materials, may be obtained from the local
Wage and Hour offices. Compliance assistance information may be found on the
Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
The Secretary of Labor can bring court action to restrain violators and assess civil
money penalties up to $10,000 per violation. An employer who violates the law
may be liable to the employee or prospective employee for legal and equitable
relief, including employment, reinstatement, promotion and payment of lost wages
and benefits.
Any person against whom a civil money penalty is assessed may, within 30 days
of the notice of assessment, request a hearing before an administrative law judge.
If dissatisfied with the administrative law judge’s decision, such person may request
a review of the decision by the Secretary of Labor. Final determinations on violations
are enforceable through the courts.

Relation to State, Local and Other Federal Laws
The law does not preempt any provision of any state or local law or any collective
bargaining agreement that is more restrictive with respect to lie detector tests.

Whistleblower Protection Provisions
Enforced By OSHA
The Occupational Safety and Health Administration (OSHA) administers the
employee protection (or “whistleblower”) provisions of fourteen statutes.

Occupational Safety & Health Act (OSH Act) (29 USC § 660(c))
Surface Transportation Assistance Act (STAA) (49 USC § 31105)
Asbestos Hazard Emergency Response Act (AHERA)
(15 USC § 2651)
International Safety Container Act (ISCA) (46 USC App. § 1506)
Energy Reorganization Act of 1974 (ERA) (42 USC § 5851)
Clean Air Act (CAA) (42 USC § 7622)
Safe Drinking Water Act (SDWA) (42 USC § 300j-9(i))
Federal Water Pollution Control Act (FWPCA) (33 USC § 1367)
Toxic Substances Control Act (TSCA) (15 USC § 2622)
Solid Waste Disposal Act (SWDA) (42 USC § 6971)
Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) (42 USC § 9610)
Wendell H. Ford Aviation Investment and Reform Act (AIR21)
(49 USC § 42121)
Sarbanes–Oxley Act (SOA) (18 USC § 1514A)
Pipeline Safety Improvement Act (PSIA) (49 USC § 60129)

Who is Covered
Under the OSH Act, employees who believe that their employer has discriminated
or retaliated against them for raising or reporting safety or health concerns may file a
complaint with OSHA. Under the STAA, employees in the trucking industry may file
complaints with OSHA if they believe that their employer has discriminated against
them for reporting safety concerns or for refusing to drive under dangerous
circumstances or in violation of safety rules.
Similarly, under the other statutes, employees also may file complaints with OSHA
if they believe that their employer has discriminated against them for reporting
protected safety concerns involving the airline or pipeline industries, for reporting
protected environmental concerns including asbestos in schools, or for reporting
potential securities fraud.
The Department of Labor also enforces the anti-retaliation provisions of several other
statutes that are not administered by OSHA. Information concerning many of these
additional anti-retaliation statutes is available in other sections of the Guide describing
the statutes enforced by different Department agencies, such as the Wage and Hour
Division, the Employee Benefits Security Administration, and the Mine Safety and
Health Administration.

Basic Provisions/Requirements
Generally, the employee protection provisions listed above prohibit an “employer”
or any “person” (the definition of which may vary from statute to statute) from
discharging or otherwise discriminating against any employee with respect to the
employee’s compensation, terms, conditions, or privileges of employment because
the employee engaged in specified “protected” activities.
The protected activities typically include: (1) initiating a proceeding under, or for
the enforcement of, any of these statutes, or causing such a proceeding to be
initiated; (2) testifying in any such proceeding; (3) assisting or participating in any
such proceeding or in any other action to carry out the purposes of these statutes;
or (4) complaining about a violation.
The ERA, the AIR21, the SOA, and the PSIA specifically cover an employee’s internal
complaints to his or her employer, and it is the Secretary’s position, as set forth in
regulations, that employees who express safety or quality assurance concerns
internally to their employers are protected under the other whistleblower statutes.
With the exception of the Fifth Circuit, the courts of appeals that have considered
whether internal complaints are protected have agreed with the Secretary.

Employee Rights
An employee who believes that he or she has been discriminated against in violation
of any of the statutes listed above may file a complaint with OSHA. Complaints must
be filed within 30 days after the occurrence of the alleged violation under the OSH
Act, the CAA, the CERCLA, the SWDA, the FWPCA, the SDWA, and the TSCA; within
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

60 days under the ISCA; within 90 days under the AIR21, the SOA, and the AHERA;
and within 180 days under the STAA, the ERA, and the PSIA. Under the SOA, if the
Secretary has not issued a final decision within 180 days of the filing of the complaint,
and there is no showing that there has been delay due to the bad faith of the
employee, the employee may bring an action at law or equity in district court.

Compliance Assistance Available
More detailed information, including copies of regulatory and interpretative materials,
may be obtained from the nearest OSHA office. Addresses and telephone numbers
for these offices are set forth in local directories and on OSHA’s Web site
(www.osha.gov).

Investigations/Penalties/Sanctions
Upon receipt of a timely complaint, OSHA notifies the employer and, if conciliation
fails, conducts an investigation. Where OSHA finds that complaints filed under the
OSH Act, the AHERA, and the ISCA have merit they are referred to the Solicitor’s
Office for legal action. Complaints under these three statutes found not to have
merit will be dismissed.
Where OSHA finds a violation after investigating complaints under the other statutes
listed above, it will issue a determination letter requiring the employer to pay back
wages, reinstate the employee, reimburse the employee for attorney’s and expert
witness fees, and take other steps to provide necessary relief. Complaints found
not to have merit will be dismissed.
Parties who object to OSHA’s determinations under the statutes listed above
(except for the OSH Act, the AHERA, and the ISCA) may request a hearing
before the Department of Labor’s Office of Administrative Law Judges (OALJ)
(www.oalj.dol.gov). Judges’ decisions are reviewed by the Department of Labor’s
Administrative Review Board (www.dol.gov/arb), which the Secretary has
designated to issue final agency decisions.
Under the STAA, if OSHA finds in favor of the employee, litigation usually is
conducted by the Solicitor’s Office, but sometimes by the employee. Under the
other statutes, litigation generally is conducted by the private parties themselves.
Employers and employees may seek judicial review of an adverse ARB decision.
Under the AIR21, the SOA, and the PSIA, employees who file complaints frivolously
or in bad faith may be liable for attorney’s fees up to $1,000.

Relation to State, Local and Other Federal Laws
The Supreme Court has held that the employee protection provisions of the Energy
Reorganization Act do not preempt existing state statutes and common law claims.
The other statutes listed above should be consulted separately to determine whether
or not their employee protection provisions are supplementary to protections
provided by state laws.

Plant Closings and Mass Layoffs
Worker Adjustment and Retraining Notification
Act (WARN) (29 USC §2101 et seq.; 20 CFR 639)
Who is Covered
The Worker Adjustment and Retraining Notification Act (WARN) generally covers
employers with 100 or more employees, not counting those who have worked less
than six months in the last 12 months and those who work an average of less than
20 hours a week. Regular federal, state and local government entities that provide
public services are not covered. Employees entitled to notice under WARN include
managers and supervisors as well as hourly and salaried workers.

Basic Provisions/Requirements
WARN protects workers, their families and communities by requiring employers to
provide notification 60 calendar days in advance of plant closings and mass layoffs.
Advance notice gives workers and their families some transition time to adjust to the
prospective loss of employment, to seek and obtain other jobs and, if necessary, to
enter skill training or retraining that will allow these workers to compete successfully
in the job market. WARN also provides for notice to state dislocated worker units so
that they can promptly offer dislocated worker assistance.
A covered plant closing occurs when a facility or operating unit is shut down for
more than six months, or when 50 or more employees lose their jobs during any
30-day period at a single site of employment. A covered mass layoff occurs when
a layoff of six months or longer affects either 500 or more workers or at least
33 percent of the employer’s workforce when the layoff affects between 50 and
499 workers. The number of affected workers is the total number laid off during a
30-day (or in some cases 90-day) period.
WARN does not apply to closure of temporary facilities, or the completion of an
activity when the workers were hired only for the duration of that activity. WARN
also provides for less than 60 days notice when the layoffs resulted from closure of
a faltering company, unforeseeable business circumstances, or a natural disaster.

Employee Rights
Workers, or their representatives, and units of local government may bring individual
or class action suits. U.S. district courts enforce WARN requirements. The Court may
allow reasonable attorney’s fees as part of any final judgment.

Compliance Assistance Available
For general information about WARN, a fact sheet can be seen on the Employment and
Training Administration’s Web site (www.doleta.gov/programs/factshtwarn). Specific
requirements of WARN may be found in the Act itself, Public Law 100-379 (29 USC
2101 et seq.) The Department published final regulations on April 20, 1989 in the
Federal Register, pages 16042 to 16070 (Vol. 54, No. 75). The regulations appear at
20 CFR Part 639. A copy of the Act and regulations may be obtained from the
U.S. Department of Labor, Employment and Training Administration, Office of Adult
Services, Division of Adults and Dislocated Workers, Room C-5325, 200 Constitution
Avenue NW, Washington, DC 20210. The telephone number is 202–693–3580.

Penalties/Sanctions
An employer who violates the WARN provisions is liable to each employee for an
amount equal to back pay and benefits for the period of the violation, up to 60 days.
This may be reduced by the period of any notice that was given, and any voluntary
payments that the employer made to the employee.
An employer who fails to provide the required notice to the unit of local government
is subject to a civil penalty not to exceed $500 for each day of violation. The
employer may avoid this penalty by satisfying the liability to each employee within
three weeks after the closing or layoff.

Relation to State, Local and Other Federal Laws
WARN does not preempt any other federal, state or local law, or any employer/
employee agreement that requires other notification or benefit. Rather, the rights
provided by WARN supplement those provided by other federal, state or local laws.

Union Members
The Labor-Management Reporting and
Disclosure Act of 1959 (LMRDA), as amended
(29 USC §401 et seq.; 29 CFR 401- 453)
Who is Covered
The Labor-Management Reporting and Disclosure Act of 1959, as amended (LMRDA),
directly affects millions of people throughout the U.S. The LMRDA covers unions,
officers and employees of unions, union members, employees who work under
collective bargaining agreements (even if they are not union members), employers,
labor relations consultants, surety companies, trusts in which a union is interested,
and other “persons” as defined in the LMRDA who may be covered by particular
provisions of the Act.
LMRDA also covers unions representing U.S. Postal Service employees by virtue of
the Postal Reorganization Act of 1970. Section 7120 of the Civil Service Reform
Act, and its implementing regulations, apply many LMRDA standards to unions
representing employees in most agencies of the executive branch of the federal
government. LMRDA does not cover unions composed solely of state and local
government employees.

Basic Provisions/Requirements
The LMRDA consists of seven titles:
■

Title I, the “Bill of Rights”, sets forth certain basic rights that Congress believed
federal law should guarantee to union members. Members may enforce these
rights through private suit in federal district court. Section 104 of the LMRDA,
which establishes the right to receive or examine collective bargaining agreements,
applies not only to union members but also to all nonunion employees whose
rights are directly affected by a collective bargaining agreement.
The Secretary of Labor also has enforcement responsibilities with regard to
Section 104. The Office of Labor-Management Standards (OLMS) of the
Employment Standards Administration handles these responsibilities.

■

Title II requires unions to file an information report (Form LM-1), copies of their
constitution and bylaws, and annual financial reports (Form LM-2, LM-3, or LM-4)
with OLMS. The reports and documents filed with OLMS are public information,
and any person may examine them or obtain copies at OLMS offices.
Officers and employees of unions must file a Form LM-30 with OLMS if they have
any loans or benefits from, or certain financial interests in, employers whose
employees their union represents and businesses that deal with their union.

Labor relations consultants who enter into an agreement with an employer to
persuade employees about their union activities, or to supply certain information
to the employer, must file a Form LM-20, Agreement and Activities Report, and a
Form LM-21, Receipts and Disbursements Report.
Employers who enter into such an agreement or engage in certain specified
financial dealings with their employees, unions, union officers, or labor relations
consultants must file a Form LM-10.
Finally, surety companies that issue bonds required by the LMRDA or the Employee
Retirement Income Security Act of 1974 (ERISA) must file a Form S-1 to report
data such as premiums received, total claims paid, and amounts recovered. The
Secretary of Labor has authority to enforce the reporting requirements of the Act.
■

Title III concerns the imposition of trusteeships over subordinate unions. A parent
union may impose a trusteeship only for a purpose specified in the LMRDA, and
it must establish and administer the trusteeship in accordance with its own
constitution and bylaws. A parent union that places a subordinate union in
trusteeship must file initial, semiannual, and terminal trusteeship reports (Forms
LM-15, LM-15A, and LM-16).
Under the LMRDA, the parent union may not engage in certain specified acts
involving the funds and delegate votes from a union under trusteeship. The
Secretary of Labor has the authority to investigate and enforce alleged violations of
Title III, and a union member or subordinate union may also enforce the provisions
of this title, except for the reporting requirements, through private suit in federal
district court.

■

Title IV establishes standards for elections of union officers. Local unions must elect
their officers by secret ballot; national and international unions and intermediate
bodies must elect their officers either by secret ballot of the members or by
delegates chosen by secret ballot. Title IV requires elections to be held by national
and international unions at least every five years, intermediate bodies at least every
four years, and local unions at least every three years.
Unions and employers may not use their funds to promote the candidacy of any
candidate, although union funds may be used to conduct an election. A union
member in good standing has the right to nominate candidates, be a candidate
subject to reasonable qualifications uniformly imposed, hold office, and support
and vote for the candidates of the member’s choice. Unions must mail a notice
of election to every member at the member’s last-known home address at least
15 days before the election.
A union member who has exhausted internal election remedies, or invoked such
remedies without obtaining a final decision within three calendar months, may file
a complaint with the Secretary within one calendar month thereafter, alleging a
violation of Title IV of the LMRDA. The Secretary of Labor has authority to file suit in
a federal district court to set aside an invalid union election and to request a new
election under the supervision of the Secretary.

■

Title V provides a number of safeguards for unions. Union officers have a duty to
manage the funds and property of the union solely for the benefit of the union in
accordance with its constitution and bylaws. A union may not have outstanding
loans to any one officer or employee that exceed $2,000. Union officials who
handle union funds or property must be bonded to provide protection against
losses.

A union officer or employee who embezzles or otherwise misappropriates
union funds or other assets commits a federal crime punishable by a fine and/or
imprisonment. Persons convicted of certain crimes, including a violation of Title II
or III of the LMRDA, may not hold union office or employment for up to 13 years
after conviction or the end of imprisonment.
■

Title VI includes the authority to investigate (see “Authority to Investigate and
Penalties” below); a prohibition on a union fining, suspending, expelling, or
otherwise disciplining members for exercising their rights under the LMRDA;
and a prohibition on the use or threat of force or violence to interfere with a
union member in the exercise of LMRDA rights.

■

Title VII amends the Labor Management Relations Act (LMRA), otherwise known
as the Taft–Hartley Act, concerning strikes, boycotts, and picketing. The National
Labor Relations Board (NLRB), an independent federal agency, administers
the LMRA.

Employee Rights
Title I of the LMRDA guarantees certain rights to all union members. These include
the right to nominate candidates, to vote in elections or referendums, to attend
membership meetings and to participate in the deliberations and vote upon the
business of such meetings, subject to reasonable rules and regulations in the
organization’s constitution and bylaws.
They also include the right to meet and assemble freely with other members, to
express any views, arguments, or opinions, and to express views at meetings about
candidates in an election of the labor organization or about any business properly
before the meeting, subject to the organization’s established and reasonable rules
pertaining to the conduct of meetings. Additional rights outlined in Title I address
dues, initiation fees and assessments, protection of the right to sue, and safeguards
against improper disciplinary action.

Compliance Assistance Available
Additional compliance assistance materials appear on the OLMS Home Page
(www.dol.gov/esa/olms_org.htm). OLMS field office staff members are available
to answer questions about the LMRDA and to help individuals and organizations
affected by the law.
The OLMS National Office Public Disclosure Room has copies of all reports and
documents filed with OLMS, and OLMS field offices have copies of reports filed by
organizations and individuals located within their jurisdictions. Copies of Form LM-1,
LM-2, LM-3, and LM-4 reports filed by unions may be ordered on OLMS’s Web site
(www.dol.gov/esa/regs/compliance/olms/rrlo/orders.htm).
In addition, all OLMS field offices as well as the OLMS National Office have blank
reporting forms and instructions as well as explanatory pamphlets about the law.

Penalties/Sanctions
The LMRDA authorizes the Secretary of Labor to investigate “in order to determine
whether any person has violated or is about to violate” any provisions of the Act
(except the Bill of Rights of Union Members and amendments made by the LMRDA to
other laws), and to “enter such places and inspect such records and accounts and
59

question such persons” as may be necessary to determine whether a violation has
occurred. The Secretary may issue subpoenas to compel testimony or to obtain
records and other materials needed to complete an investigation.
The Secretary may file civil actions in federal district court to restrain or correct
violations and to bring about compliance with the LMRDA. The embezzlement of
union funds is subject to a fine of up to $250,000 and/or imprisonment up to five
years. Criminal penalties also apply to other Title V provisions as well as to certain
reporting violations under Titles II and III.

Relation to State, Local and Other Federal Laws
Federal laws related to the LMRDA include the National Labor Relations Act of 1935;
the Taft–Hartley Act of 1947; the Racketeer-Influenced and Corrupt Organizations
(RICO) Act; the Service Contract Act; and the Civil Service Reform Act of 1978.

Uniformed Service Members
Uniformed Services Employment and
Reemployment Rights Act (USERRA)
(38 USC §§4301 through 4333)
Who is Covered
The Uniformed Services Employment and Reemployment Rights Act (USERRA)
was signed on October 13, 1994. The Act applies to persons who perform duty,
voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy,
Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps,
as well as the reserve components of each of these services. Federal training or
service in the Army National Guard and Air National Guard also gives rise to rights
under USERRA. In addition, under the Public Health Security and Bioterrorism
Response Act of 2002, certain disaster response work (and authorized training for
such work) is considered “service in the uniformed services” as well.
Uniformed service includes active duty, active duty for training, inactive duty training
(such as drills), initial active duty training, and funeral honors duty performed by
National Guard and reserve members, as well as the period for which a person is
absent from a position of employment for the purpose of an examination to
determine fitness to perform any such duty.
USERRA covers nearly all employees, including part-time and probationary
employees. USERRA applies to virtually all U.S. employers, regardless of size.

Basic Provisions/Requirements
The pre-service employer must reemploy service members returning from a period
of service in the uniformed services if those service members meet five criteria:
■

The person must have held a civilian job;

■

The person must have given notice to the employer that he or she was leaving
the job for service in the uniformed services, unless giving notice was precluded
by military necessity or otherwise impossible or unreasonable;

■

The cumulative period of service must not have exceeded five years;

■

The person must not have been released from service under dishonorable or
other punitive conditions; and

■

The person must have reported back to the civilian job in a timely manner or have
submitted a timely application for reemployment.

USERRA establishes a five-year cumulative total on military service with a single
employer, with certain exceptions allowed for situations such as call-ups during
emergencies, reserve drills and annually scheduled active duty for training.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

USERRA also allows an employee to complete an initial period of active duty that
exceeds five years (e.g., enlistees in the Navy’s nuclear power program are required
to serve six years).

Employee Rights
Under USERRA, restoration rights are based on the duration of military service rather
than the type of military duty performed (e.g., active duty for training or inactive duty),
except for fitness-for-service examinations. The time limits for returning to work are
as follows:
■

Less than 31 days service: By the beginning of the first regularly scheduled work
period after the end of the calendar day of duty, plus time required to return home
safely and an eight hour rest period. If this is impossible or unreasonable, then as
soon as possible.

■

31 to 180 days: The employee must apply for reemployment no later than 14 days
after completion of military service. If this is impossible or unreasonable through
no fault of the employee, then as soon as possible.

■

181 days or more: The employee must apply for reemployment no later than
90 days after completion of military service.

■

Service-connected injury or illness: Reporting or application deadlines are
extended for up to two years for persons who are hospitalized or convalescing.

USERRA guarantees pension plan benefits that accrued during military service,
regardless of whether the plan is a defined benefit plan or a defined contribution
plan. Also, USERRA provides health benefits continuation for service members and
their families during military service for up to 18 months. In addition, USERRA prohibits
employment discrimination against a person on the basis of past military service,
current military obligations, or an intent to serve.

Compliance Assistance Available
The Veterans’ Employment and Training Service (VETS) enforces USERRA. However,
the law also allows an employee to enforce his or her rights by filing a court action
directly, without filing a complaint with VETS.
VETS has published a fact sheet (OASVET 97-3) about USERRA. Copies of this
and/or other VETS’ publications, or answers to questions about USERRA, may be
obtained from the local VETS office. The elaws Uniformed Services Employment
and Reemployment Rights Act (USERRA) Advisor (www.dol.gov/elaws) helps veterans
understand employee eligibility and job entitlements, employer obligations, benefits
and remedies under the Act. VETS has also published a non-technical USERRA
Guide that contains general information about the law. Information on USERRA and
other VETS programs may be found on the VETS Web site (www.dol.gov/vets).

Penalties/Sanctions
A court may order an employer to compensate a prevailing claimant for lost wages
or benefits. USERRA allows for liquidated damages for “willful” violations.

Relation to State, Local and Other Federal Laws
USERRA does not preempt state laws providing greater or additional rights, but it does
preempt state laws providing lesser rights or imposing additional eligibility criteria.
62

Authorized Workers
Immigration and Reform and Control Act
of 1986 (IRCA) (8 USC 1101 as amended)
Immigration and Nationality Act, Section 274A
Who is Covered
The Immigration and Nationality Act (INA) includes provisions addressing employment
eligibility, employment verification and nondiscrimination. These provisions apply to
all employers.

Basic Provisions/Requirements
Under IRCA, employers may hire only persons who may legally work in the U.S.
(i.e., citizens and nationals of the U.S. and aliens authorized to work in the U.S.).
The employer must verify the identity and employment eligibility of anyone to be
hired, which includes completing the Employment Eligibility Verification Form (I-9).
Employers must keep each I-9 on file for at least three years, or one year after
employment ends, whichever is longer.

Employee Rights
The INA protects U.S. citizens and aliens authorized to accept employment in the
U.S. from discrimination in hiring or discharge on the basis of national origin and
citizenship status.

Compliance Assistance Available
More detailed information, including copies of explanatory brochures and regulatory
and interpretative materials, may be obtained from local offices of the Employment
Standards Administration’s Wage and Hour Division (www.wagehour.dol.gov) and
the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp).

Penalties/Sanctions
Employers who fail to complete and/or retain the I-9 forms are subject to penalties.
The Immigration and Naturalization Service (INS) enforces the INA requirements on
verification of employment eligibility. The Justice Department enforces the antidiscrimination provisions. As part of their ongoing enforcement efforts, the ESA’s
Wage and Hour Division and Office of Federal Contract Compliance Programs conduct
inspections of the I-9 forms. They report their findings to the INS and to the Department
of Justice where disparate treatment or unauthorized employment is apparent.

Relation to State, Local and Other Federal Laws
Not applicable.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Temporary Agricultural Workers
(H-2A Visas)
Section 218 of the Immigration and Nationality
Act of 1952 (INA), as amended (8 USC §§1101,
1184, and 1188; 20 CFR 655, subpart B, and
29 CFR, part 500)
Who is Covered
The Immigration and Nationality Act (INA) covers agricultural employers seeking to
hire temporary agricultural workers under H-2A visas.

Basic Provisions/Requirements
Employers may not import a foreign worker under an H-2A visa unless they have
applied to the Employment and Training Administration (ETA) for certification that:
(1) there are not sufficient workers who are able, willing, qualified and available to
perform the work; and (2) the employment of foreign workers will not adversely affect
the wages and working conditions of similarly employed workers in the U.S.
To receive a timely determination, an employer must apply for a temporary labor
certification at least 45 days before the date of need. The employer should file the
application with both the appropriate ETA regional office and the office of the State
Workforce Agency (SWA) serving the geographic areas where the foreign workers
will be employed.
ETA’s jurisdiction includes whether the employer conducted positive recruitment,
whether a strike or lockout was in progress, whether the employer will provide
workers’ compensation insurance, whether adequate housing is available, what
the prevailing wage rates are, and other similar matters. The regulations addressing
issuance and denial of labor certification for temporary, nonimmigrant foreign workers
are found at 20 CFR 655, subpart B.
The procedures for obtaining a labor certification and the contractual obligations
of employers are summarized below. Additional information may be found at
www.ows.doleta.gov. Under “Foreign Labor”, select the H-2A certification link.
Recruitment of U.S. Workers. Any employer who applies for certification of H-2A
job opportunities must first attempt to recruit U.S. workers to fill these openings.
After H-2A workers are recruited, employers must continue to engage in “positive
recruitment” of U.S. workers. SWAs continue active recruitment, but positive
recruitment stops when workers depart for the place of employment.

In addition, after the H-2A workers have begun work, the employer must agree to
accept U.S. workers until 50 percent of the certified contract period has passed.
Rates of Pay. In every H-2A employment situation, the employer must agree to
pay all workers employed in certified jobs either (1) the Adverse Effect Wage Rate
(AEWR); (2) the Prevailing Rate for a given crop/area; or (3) the legal state minimum
wage, whichever is higher. None of these rates may be less than the federal
minimum wage, which is $5.15 an hour.
The U.S. Department of Agriculture (USDA) establishes the AEWR, which is an annual
weighted average hourly rate for field and livestock workers (combined) for nineteen
USDA regions. Prevailing wages may be calculated on the basis of hourly or “piece”
rates of pay. However computed, they must not be less than the rate specified in
the job offer/worker contracts.
Job Clearance Order/Worker Contracts. The employer must provide every worker
a copy of the worker contract or, as a substitute for the worker contract, a copy of
the clearance order. If worker contracts are provided, they must specify at least
those benefits required by the regulations. The job clearance order is the “official”
document, since it is the one the employer submits and the Department of Labor
approves. The job clearance order/contract must state:
■

The beginning and ending dates of the contract period;

■

Any and all significant conditions of employment, such as payment for
transportation expenses incurred, housing and meals to be provided (and related
charges), specific days workers are not required to work (i.e., Sabbath, federal
holidays);

■

The hours per day and the days per week each worker will be expected to work
during the contract period;

■

The crop(s) to be worked and rate(s) for each crop/job;

■

The rate(s) of pay for each job to be performed;

■

Any tools required, with an indication that employer pays for them; and

■

Verification that workers’ compensation insurance will be provided according to
the law of the state where work is performed.

Guarantees to All Workers. Employers certified for H-2A contracts must agree to
provide each worker an offer of employment for at least 75 percent of the hours in the
contract period. Such an offer is called the “three-fourths guarantee.” For example,
in a contract for a 10-week period, during which a normal workweek is specified
as six days a week, eight hours per day, the worker would have to be guaranteed
employment for at least 360 hours (i.e., 10 weeks x 48 hours per week = 480 hours x
75% = 360 hours).
Wages for the guaranteed 75 percent period would be calculated at not less than
the average hourly piece rate or the AEWR for the state in which the work was done,
whichever is higher.
Transportation Costs/Reimbursement. Every non-local worker employed on an H-2A
contract is entitled to be paid for all transportation costs related to travel from the place
where the worker was recruited to the job site, and then back to the worker’s area of
residence. Both foreign and U.S. workers are entitled to such payments. Workers are
defined as “non-local” if they cannot reasonably return to their permanent residence
every night. Employers must reimburse expenses according to the following schedule:
65

■

For transportation to the place of employment, the employer must repay the
worker when 50 percent of the contract period has been completed.

■

For transportation “home,” the worker must complete the agreed-upon contract
period. The employer has no obligation to pay return expenses if an employee
abandons the employment unless some special provision in the worker’s contract
provides otherwise.

Records Required: Employers certified for H-2A contracts must keep records of the
hours each worker actually works. In addition, the employer must retain a record of
time “offered” to the worker but which the worker “refused” to work. Each worker
must receive a wage statement showing hours of work, hours refused, pay for each
type of crop, the basis of pay (i.e., whether the worker is being paid by the hour,
by the piece, “task” pay, etc.). The wage statement must indicate total earnings for
the pay period and all deductions from wages (along with a statement as to why
deductions were made).
Termination of Workers. Employers must maintain records on any worker who
abandons employment, either voluntarily or involuntarily. To negate a continuing
liability for wages and benefits to workers, the employer must notify the local Job
Service of the SWA in writing within 48 hours of either termination or abandonment of
employment. The report should state the date of the termination/abandonment and
the reason for it. The employer should also state if it will seek to replace such workers.

Employee Rights
H-2A workers can file complaints about H-2A labor standards. ETA or any SWA will
forward any complaint received about contractual H-2A labor standards between the
employer and the employee to the local Wage and Hour office for appropriate action.

Compliance Assistance Available
Information on how to apply for a temporary labor certification, including application
forms and directives, may be obtained from the SWAs. The SWA staffs can help
employers fill out applications, place agricultural clearance orders, and provide
advice on possible recruitment sources.
Copies of the application forms, regulations and relevant directives may also be
obtained from ETA regional offices (1–877–US–2JOBS). Copies of Wage and Hour
publications may be obtained from the nearest office of the Wage and Hour Division,
listed in most telephone directories under U.S. Government, Department of Labor,
Wage and Hour Division.

Penalties/Sanctions
The Wage and Hour Division of the Employment Standards Administration is responsible
for ensuring that employers comply with all contractual and regulatory provisions that
apply to the employment of H-2A workers under Section 218 of the INA. The regulations
addressing enforcement by the Wage and Hour Division are found at 29 CFR part 501.

Relation to State, Local and Other Federal Laws
Foreign workers employed under the H-2A program are not covered under the
Migrant and Seasonal Agricultural Worker Protection Act.
66

Temporary Nonagricultural Workers
(H-2B Visas)
Sections 101(a)(15)(H)(ii)(b) and 214(c)(1)
and (g)(1) of the Immigration Act of 1952,
as amended and Section 8 CFR 214.2(h)(6)
Who is Covered
The regulations of the Immigration and Naturalization Service (INS), 8 CFR 214.2(h)(6),
apply to employers who wish to import temporary nonagricultural workers classified
under Section 101(a)(15)(H)(ii)(b) to work in temporary jobs in the U.S. Section
214(c)(1) of the Immigration and Nationality Act (INA) requires the Attorney General
to consult with the Department of Labor before determining whether any worker
can be admitted under Section 101(a)(15)(H)(ii)(b). Section 214(g)(1) of the INA
provides that the number of aliens who can be issued visas or provided nonimmigrant
status under Section 101(a)(15)(H)(ii)(b) cannot exceed 66,000.

Basic Provisions/Requirements
INS regulations require that employers who file H-2B petitions with the INS (except
for temporary employment on Guam) must include an advisory certification from
the Department of Labor stating that qualified workers are not available in the U.S
and that the foreign worker’s employment will not adversely affect wages and
working conditions of similarly employed U.S. workers. Absent such a document,
the employer must submit a statement detailing the reasons why certification
cannot be made.
Employers must file applications for certification of temporary nonagricultural jobs
on Part A of an Application for Alien Employment Certification, Form ETA 750
(www.workforcesecurity.doleta.gov/foreign/750inst.asp), with the State Workforce
Agency (SWA) serving the geographic area where the alien will work. To receive
a timely determination, the employer should apply at least 60 but no more than
120 days before the workers are needed.
The employment for which certification is requested must be for less than one year,
and the need for the service or labor shall be a one-time occurrence, seasonal
need, peak load need, or intermittent need. As part of the application packet, the
employer must submit a statement explaining how the request meets the above
stated criteria. General Administrative Letter No. I-95, dated November 10, 1994,
states the requirements for obtaining temporary nonagricultural labor certifications.
This letter may be viewed at www.workforcesecurity.doleta.gov, under the topic
“Directives/Advisories.”
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Other detailed information may also be found at www.workforcesecurity.doleta.gov.
Under “Foreign Labor”, select the link for H-2B certification.
After receiving an application, the SWA prepares a job order and places it into the
Employment Service System for 10 days. The employer, after filing the application
with the SWA, advertises the job opportunity in a newspaper of general circulation
for three consecutive days, or in a professional, trade, or ethnic publication,
whichever is most appropriate for the occupation and most likely to bring
responses from U.S. workers.
The employer must also document that unions and other recruitment sources,
appropriate for the occupation and customary to the industry, could not refer
qualified U.S workers. After the employer completes the required recruitment, it
must submit a recruitment report that explains the lawful job-related reasons for not
hiring each U.S. worker that applied.

Employee Rights
Worker-protection provisions that apply to U.S. workers (e.g., the Fair Labor Standards
Act) cover nonimmigrant H-2B workers. Workers may file complaints with the local
Wage and Hour Offices.

Compliance Assistance Available
Employers may obtain information on how to apply for a temporary nonagricultural
labor certification, including application forms and directives that contain prescribed
procedural requirements, from the SWAs or regional offices of the Employment
and Training Administration (1–877–US–2JOBS). SWA staffs can help employers
fill out application forms, place job orders, and draft advertisements that meet
prescribed requirements.

Penalties/Sanctions
There are no enforcement provisions specific to this program.

Relation to State, Local and Other Federal Laws
Various other laws, such as workers’ compensation, tax (unemployment insurance,
local, state and federal) and the Family and Medical Leave Act, may apply to the
employment of these workers.

Workers in Professional and
Specialty Occupations (H-1B Visas)
The Immigration and Nationality Act (INA)
as amended by The Immigration Act of 1990
(IMMACT) and Others (H-1B program)
(8 USC §1101(a)(15)(l)(b), 1182(n), 1184(c);
20 CFR 655 subparts H and I)
Who is Covered
The H-1B program applies to employers seeking to hire nonimmigrant aliens as
workers in specialty occupations or as fashion models using the H-1B nonimmigrant
visa classification.

Basic Provisions/Requirements
The Immigration and Nationality Act (INA) allows employment of foreign workers in
certain specialty occupations (generally those requiring a bachelor’s degree or its
equivalent). Foreign workers such as engineers, teachers, computer programmers,
medical doctors, and physical therapists may be employed under the H-1B visa
classification, as may fashion models of distinguished merit and ability.
The INA sets forth procedures for employers wishing to employ H-1B nonimmigrant
workers. To obtain H-1B status approval, the employer must first file a Labor Condition
Application (LCA), Form ETA 9035 or ETA 9035E, with the Department of Labor.
The employer must state that it will:
■

Pay the nonimmigrant workers at least the local prevailing wage or the employer’s
actual wage, whichever is higher; pay for non-productive time in certain
circumstances; and offer benefits on the same basis as for U.S. workers;

■

Provide working conditions for nonimmigrant workers that will not adversely affect
the working conditions of workers similarly employed;

■

Not employ an H-1B nonimmigrant worker at a location where a strike or lockout in
the occupational classification is occurring, and notify the Employment and Training
Administration (ETA) of any future strike or lockout; and

■

On or within 30 days before the date the LCA is filed with ETA, provide notice of
the employer’s intent to hire H-1B workers. The employer must provide this notice
to the bargaining representative of workers in the occupation in which the H-1B
nonimmigrant worker will be employed. If there is no bargaining representative,
the employer must post such notices in conspicuous locations at the intended
place(s) of employment, or provide them electronically.

Additional rules apply to H-1B dependent employers. Such an employer is, roughly,
one whose total workforce is made up of enough H-1B workers that they comprise
15% of the employer’s total workforce. (Different thresholds apply to smaller
employers.) H-1B dependent employers who wish to hire only H-1B workers who
are paid at least $60,000 per year or have a master’s degree or higher in a specialty
related to the employment can be exempted from these additional elements.
H-1B dependent employers and willful violator employers must attest to the following
three elements addressing non-displacement and recruitment of U.S. workers:
■

The employer will not displace any similarly employed U.S. worker within 90 days
before or after applying for H-1B status, or an extension of status for any H-1B
worker;

■

The employer will not place any H-1B worker employed pursuant to the LCA at the
worksite of another employer unless the employer applicant first makes a bona fide
inquiry as to whether the other employer has displaced or intends to displace a
similarly employed U.S. worker within 90 days before or after the placement of the
H-1B worker; and

■

The employer, before applying for H-1B status for any H-1B worker pursuant to
the LCA, took or will take good faith steps to recruit U.S. workers for the job the
nonimmigrant is sought, at wages as least equal to those offered to the H-1B
worker. Also, the employer will offer the job to any U.S. worker who applies and is
equally or better qualified than the H-1B worker. This attestation does not apply if
the H-1B worker is a “priority worker” within the meaning of Section 203(b)(1)(A),
(B), or (C) of the INA.

After the Department of Labor certifies the LCA, the employer will apply to the
Immigration and Naturalization Service (INS) for approval to employ an individual
under H-1B status so that foreign workers may be hired.

Employee Rights
H-1B workers are granted a number of important rights. The employer must give the
worker a copy of the LCA. The employer must pay the worker at least the same wage
rate as paid to other employees with similar experience and qualifications or the local
prevailing wage for the occupation in the area of employment, whichever is higher.
The employer must pay for non-productive time caused by the employer or by the
worker’s lack of a license or permit. The employee must offer the worker fringe
benefits on the same basis as other employees.
Also, the employer must not force or allow the worker to pay, either directly or
indirectly, any part of the $1,000 application fee that the employer must pay to the
INS when submitting the H-1B visa application. The employer may not require the
worker to pay a financial penalty for leaving employment prior to a date set in the
employment contract. However, this restriction does not preclude the employer from
seeking “liquidated damages” pursuant to relevant state law. Liquidated damages are
generally estimates stated in the contract of the anticipated damages to the employer
caused by the worker’s breach of contract.
U.S. workers and job applicants may also have certain H-1B rights. U.S. workers
employed directly by an H-1B dependent or willful violator employer have the right
not to be displaced by an H-1B worker. This protection applies to displacement
within 90 days before or after the employer files the INS petition requesting approval
to employ the individual in the H-1B status. Also, the protection applies only to
individuals employed in a job essentially equivalent to the one for which the H-1B
worker was sought.
70

An H-1B dependent and willful violator employer may also be liable if it places an
H-1B worker at another employer’s worksite and a U.S. worker employed by the other
employer is displaced from an essentially equivalent job. This provision applies to a
period 90 days before or after the H-1B worker is placed at the worksite.
U.S. job applicants generally have a right to be recruited for jobs with H-1B dependent
and willful violator employers and offered the job if they are equally or better qualified
than the H-1B worker being sought. The U.S. Department of Justice has the authority
to investigate complaints of failure to hire U.S. workers.
The non-displacement, recruitment, and hiring provisions apply only to an LCA and
petition that reflect that the employer is an H-1B-dependent or willful violator employer
and does not state that the workers being petitioned are exempt.
No employer of H-1B workers may intimidate, threaten, blacklist, discharge, or in any
other manner discriminate against any employee, former employee, or job applicant
for disclosing violations of H-1B provisions or for cooperating in an official investigation
of the employer’s compliance.
U.S. workers and H-1B workers may also examine the public disclosure documents
that the employer is required to maintain that provide information about the
employer’s compliance with the attestation elements.

Compliance Assistance Available
Information on filing and processing LCAs may be found at www.ows.doleta.gov.
Links to the Federal Register that contain detailed technical regulations controlling
the H-1B program, as well as non-technical H-1B information, may be found at
www.workforcesecurity.doleta.gov/foreign/h-1b.asp.
More detailed information may also be obtained by contacting the local offices
of ETA (1– 877–US–2JOBS) or the Wage and Hour Division of the Employment
Standards Administration (1–866–4USWAGE). Information on how to submit a
petition requesting an H-1B visa may be obtained from the INS (www.ins.gov).

Penalties/Sanctions
When violations are found, the Administrator of the Wage and Hour Division may
assess civil money penalties with maximums ranging from $1,000 to $35,000 per
violation, depending on the type and severity of the violation. The Administrator
may also impose other remedies, including payment of back wages.
Within 15 days of the date of the determination, any interested party may request a
hearing on the Wage and Hour Administrator’s determination before an administrative
law judge. Within 30 days of the decision by an administrative law judge, an
interested party may request a review of the administrative law judge’s decision
by the Department’s Administrative Review Board.
Employers found to have committed certain violations may also be precluded from
future access to the H-1B program and other immigrant programs for a period of at
least one year.

Relation to State, Local and Other Federal Laws
Various other laws, such as worker’s compensation, tax (unemployment insurance,
local, state, and federal), the Fair Labor Standards Act, and the Family and Medical
Leave Act, may apply to the employment of these workers.
71

Permanent Employment of Workers
Based on Immigration
(8 USC §1101 et seq.; 20 CFR 656)
Who is Covered
Section 212(a) of the Immigration and Nationality Act applies to employers seeking
to hire foreign workers immigrating for the purpose of employment. Section 122(a)
of IMMACT requires employers to provide notice of the filing of a permanent labor
certification application.

Basic Provisions/Requirements
Before a foreign worker can be admitted to the U.S. for permanent employment,
the prospective employer must obtain a labor certification from the Secretary of
Labor. The Secretary must certify that there are not sufficient U.S. workers who
are able, willing, qualified and available, and that the employment of an immigrant
foreign worker will not adversely affect the wages and working conditions of
similarly employed U.S. workers.
The employer begins the labor certification process by filing Parts A and
B of an Application for Alien Employment Certification, Form ETA 750
(www.workforcesecurity.doleta.gov/foreign/750inst.asp), with the State Workforce
Agency (SWA) serving the geographic area where the alien will work. Employers
are required to recruit U.S. workers at prevailing wages and working conditions
through the SWA by placing a job order with the SWA and by placing an
advertisement, depending upon the occupation, in a newspaper of general
circulation or in a professional, trade or ethnic journal. The employer must also
provide notice of the filing of the application for labor certification at the facility or
location of the employment. Regional certifying officers have broad authority to
require an employer to use other sources to recruit for U.S. workers that may be
appropriate in a particular case.
In addition to recruiting through the SWA, employers may also recruit before filing
their applications pursuant to the reduction in recruitment (RIR) provisions of the
regulations at 20 CFR 656.21(i). The RIR provisions allow certifying officers to reduce,
partially or completely, the employer’s recruitment efforts through the SWAs (e.g.,
by partially or completely decreasing the number of days which the employer must
run the job order and/or ad).
A decision to grant or deny an employer’s application for a permanent alien
employment certification is based on the results of the employer’s recruitment efforts
and compliance with the Department of Labor’s regulations governing the permanent
labor certification process. Those regulations are found at 20 CFR part 656.
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Employee Rights
All appropriate protections under U.S. labor laws apply to these workers.

Compliance Assistance Available
Employers may obtain information on how to apply for a permanent labor certification,
including application forms and regulatory and procedural requirements, from the
SWAs, the regional offices of the Employment and Training Administration, or from
www.ows.doleta.gov. Form ETA 7500 may be downloaded from the Web site
as well.
SWA staff members can help employers fill out application forms, place job orders,
and draft advertisements that meet regulatory requirements. Copies of the regulations
and applications forms are also available from www.workforcesecurity.doleta.gov/
foreign.

Penalties/Sanctions
Not applicable.

Relation to State, Local and Other Federal Laws
Various other laws, such as workers’ compensation, tax (unemployment insurance,
local, state and federal), the Fair Labor Standards Act, and the Family Medical and
Leave Act, may apply to the employment of these workers.

Nurses (H-1C Visas)
The Nursing Relief for Disadvantaged
Areas Act of 1999 (NRDAA) Amending
the Immigration and Nationality Act
(8 USC §1101(a)(15)(h)(i); 20 CFR 655)
Who is Covered
The Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA) allows qualified
hospitals to employ temporary foreign workers (nonimmigrants) as registered nurses
(RNs) for up to three years under H-1C visas. Only 500 H-1C visas can be issued
each year during the four-year period of the H-1C program. To qualify for this
program, a hospital must:
■

Be a “subpart d” hospital under the Social Security Act;

■

Be located in an area with a shortage of health professionals;

■

Have at least 190 acute care beds;

■

Be reimbursed by Medicare for at least 35% of acute care inpatient days; and

■

Be reimbursed by Medicaid for at least 28% of acute care inpatient days.

Basic Provisions/Requirements
A qualified hospital (“facility”) begins the process by filing an attestation with the
Department of Labor that addresses eight elements. Among other things, these
elements require the prospective employer of H-1C nurses to pay no less than the
prevailing wage to all RNs (both U.S. and H-1C); notify all RNs at the facility of its
intent to petition for H-1C nurses; take steps to recruit, train and retain U.S. RNs;
and not lay off any U.S. RN while petitioning for H-1C nurses.
When the Department accepts the attestation for filing, the facility may file a petition
with the Immigration and Naturalization Service (INS) for the admission of H-1C
nurses. The facility must keep certain documents available for public inspection,
including the Attestation, the facility pay schedule for nurses, evidence of its efforts
to retain U.S. RNs, notices of any strikes or labor disputes involving RNs at the facility,
and copies of notices of the facility’s intent to petition for H-1C nurses.
The Employment and Training Administration (ETA) administers the attestation
process, while the Wage and Hour Division of the Employment Standards
Administration determines whether a hospital has complied with the attestations.

Employee Rights
All appropriate protections under U.S labor laws apply to these workers.

Compliance Assistance Available
More detailed information may be obtained by contacting the local Employment
and Training Administration (1–877–US–2JOBS) and Wage and Hour Division offices
(1– 866– 4USWAGE).

Penalties/Sanctions
When violations are found, the Administrator of the Wage and Hour Division may
assess a civil money penalty not to exceed $1,000 per RN per violation and impose
other appropriate remedies, including payment of back wages and the performance
of attested obligations. Within 10 days of the date of the determination, an employer
may request a hearing on the determination of a violation before an administrative
law judge. Within 30 days of the decision by an administrative law judge, an
interested party may request a review of the administrative law judge’s decision by
the Department’s Administrative Review Board. Employers found to have committed
violations may also be precluded from access to the H-1C program for at least
one year.

Relation to State, Local, and Other Federal Laws
Various other laws, such as workers’ compensation, tax (unemployment insurance,
local, state, and federal), the Fair Labor Standards Act, and the Family and Medical
Leave Act, may apply to the employment of these workers.

Crewmembers (D-1 Visas)
The Immigration Act of 1990 (IMMACT),
The Coast Guard Authorization Act of 1993,
as amended, The Immigration and Nationality
Act (INA) (8 USC §1101 et seq.; 20 CFR 655)
Who is Covered
These provisions apply to vessels/employers seeking to employ their nonimmigrant
aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas.

Basic Provisions/Requirements
The INA was amended to prohibit alien crewmembers (D-visa holders) from
performing longshore work in U.S. ports unless one of the following provisions
applies:
■

A reciprocity agreement between the U.S. and the vessel/employer’s country is
in place;

■

A port’s collective bargaining agreement(s) allows the employment of D-visa
workers to perform longshore work;

■

The vessel/employer filed an attestation (Form ETA 9033) with the Department of
Labor under the prevailing practice exception;

■

The vessel/employer filed an attestation (Form ETA 9033-A) with the Department
of Labor under the State of Alaska exception; or

■

The longshore activity is performed with the use of an automated vessel.

The Employment and Training Administration administers the attestation process
under the prevailing practice and State of Alaska exceptions. The Wage and Hour
Division of the Employment Standards Administration investigates and resolves
complaints that the employer failed to meet conditions to which it attested,
misrepresented a material fact in an attestation, or failed to use the automated
vessel exception properly.

Employee Rights
U.S. workers have the right not to have foreign crewmembers on D-visas perform
longshore work during a strike or lockout in the course of a labor dispute. Also, the
performance of the longshore work by foreign crewmembers must not be intended
to influence an election of a bargaining representative for workers in the local port.

The employer must provide notice of the filing of an attestation to longshore workers
employed at the local port. Any aggrieved party or organization (including bargaining
representatives in the local port) may file a complaint alleging a misrepresentation on
an attestation or a failure to comply with the terms thereof.
Under the State of Alaska exception, an employer must make a bona fide request
for and employ U.S. workers who are qualified and available in sufficient numbers
to perform the longshore work. Only where sufficient U.S. longshore are unavailable
may the employer use alien crewmembers to perform the work.
U.S. workers have a right to protection against discrimination. No employer may
intimidate, threaten, blacklist, discharge, or in any other manner discriminate against
any person for disclosing violations of the regulations or for cooperating in an official
investigation of the employer’s compliance.

Compliance Assistance Available
General information on the filing of attestations under the prevailing practice and
State of Alaska exceptions may be accessed at www.ows.doleta.gov. More detailed
information may be obtained by contacting the local offices of the Employment
and Training Administration (1– 877– US– 2JOBS) and the Wage and Hour Division
(1– 866 – 4USWAGE).

Penalties/Sanctions
When violations are found, the Wage and Hour Division may assess a civil money
penalty not to exceed $5,000 per crewmember employed in violation and other
appropriate remedies. Any interested party may request a hearing on the Wage
and Hour Administrator’s determination before an administrative law judge, and
any interested party may petition the Secretary of Labor to review the administrative
law judge’s decision.
During an investigation, the Wage and Hour Division may enter a “cease and desist”
order against the employer. When a “cease and desist” order has been entered, an
employer may not use the services of D-visa crewmembers. Vessels owned by an
employer found in violation of this program will not be allowed to enter U.S. ports
and may be precluded from future access to the D-1 program for up to one year.

Relation to State, Local and Other Federal Laws
Various other laws, such as the Fair Labor Standards Act, may apply to these workers.

Wages in Supply and Equipment
Contracts
Walsh–Healey Public Contracts Act (PCA) (41
USC §35 et seq.; 41 CFR 50-201, 202, and 206)
Who is Covered
The Walsh–Healey Public Contracts Act (PCA) applies to contractors with contracts in
excess of $10,000 for the manufacturing or furnishing of materials, supplies, articles,
or equipment to the U.S. Government or the District of Columbia. The Act covers
employees who produce, assemble, handle, or ship goods under these contracts.
The Act does not apply to executive, administrative, and professional employees,
or to outside salespersons exempt from the minimum wage and overtime provisions
of the Fair Labor Standards Act. Nor does it apply to certain office and custodial
workers.
Certain contracts are not covered by this Act. They include:
■

Purchases of materials, supplies, articles, or equipment as may usually be bought
in the “open market”;

■

Purchases of perishables;

■

Purchases of agricultural products from the original producers;

■

Contracts made by the Secretary of Agriculture for the purchase of agricultural
commodities or products;

■

Contracts for public utility services and certain transportation and communication
services; and

■

Supplies manufactured outside the U.S. (including Puerto Rico) or the
Virgin Islands.

Basic Provisions/Requirements
Covered contractors must pay employees on the contracts the federal minimum
wage of $5.15 an hour. The employers may pay special lower rates to apprentices,
students in vocational education programs, and disabled workers if they obtain
special certificates from the Department of Labor. Employees must also be paid
one and one-half times their regular rate of pay for all hours worked over 40 in
a workweek.
The Act prohibits the employment of youths less than 16 years of age and convicts,
except under certain conditions. Not included in convict labor are persons paroled,
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

pardoned, or discharged from prison, or prisoners participating in a work-release
program. It is also unlawful to carry out the contract work under working conditions
that are unsanitary, hazardous, or dangerous to the health and safety of employees.

Employee Rights
The PCA provides employees on covered federal contracts the right to be paid at
least the minimum wage for all hours worked and time and one half their regular rate
of pay for overtime hours. The Wage and Hour Division accepts complaints of alleged
PCA violations.

Compliance Assistance Available
The Wage and Hour Division of the Employment Standards Administration enforces
the wage and hour requirements of the Act. Depending on the type of contract,
the Occupational Safety and Health Administration and the Mine Safety and Health
Administration enforce the safety and health requirements. Additional information is
available from local Wage and Hour offices. Compliance assistance information may
also be obtained on the Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Contractors and subcontractors who violate the Act may be subject to a variety of
penalties. The underpayment of wages and overtime pay may result in the withholding
of contract payments in amounts sufficient to reimburse the underpayment. The
penalty for employing underage minors or convicts is $10 per day per person, for
which contract payments may also be withheld. The Department may also bring
legal action to collect wage underpayment and fines for illegally employing minors
and convicts. Willful violations may subject the employer to cancellation of the
current contract and debarment from future federal contracts for a three-year period.
After an investigator has served a formal complaint to the contractor, a hearing is held
before an administrative law judge. If the respondent has violated the Act, he or she
can appeal the decision by filing a petition for review with the Administrative Review
Board. Final determinations on violations and debarment may be appealed to and
are enforceable through the federal courts.

Relation to State, Local and Other Federal Laws
State and local laws regulating wages and hours of work may also apply to
employment subject to this Act. When this happens, the employer must observe
the law setting the stricter standard. Compliance with the regulation’s safety and
health standards will not relieve anyone of any obligation to comply with stricter
standards from another source. The Walsh–Healey Public Contracts Act and the
Fair Labor Standards Act may apply simultaneously to the same employer.

Prevailing Wages in Service Contracts
McNamara–O’Hara Service Contract Act (SCA)
(41 USC §351 et seq.; 29 CFR 4, 6, and 8)
Who is Covered
The McNamara–O’Hara Service Contract Act (SCA) covers contracts entered into
by federal and District of Columbia agencies where the principal purpose of the
contract is to furnish services in the U.S. through the use of “service employees.”
The definition of “service employee” includes any employee engaged in performing
services on a covered contract other than a bona fide executive, administrative, or
professional employee who meets the exemption criteria set forth in 29 CFR Part 541.
The Act does not apply to certain types of contractual services. These statutory
exemptions include:
■

Contracts for construction, alteration, and/or repair of public buildings or public
works, including painting and decorating (those covered by the Davis–Bacon Act);

■

Work required in accordance with the provisions of the Walsh–Healey Public
Contracts Act;

■

Contracts for transporting freight or personnel where published tariff rates are in
effect;

■

Contracts for furnishing services by radio, telephone, telegraph, or cable
companies subject to the Communications Act of 1934;

■

Contracts for public utility services;

■

Employment contracts providing for direct services to a federal agency by an
individual or individuals;

■

Contracts for operating postal contract stations for the U.S. Postal Service;

■

Services performed outside the U.S. (except in territories administered by the
U.S., as defined in the Act); and

■

Contracts administratively exempted by the Secretary of Labor in special
circumstances because of the public interest or to avoid impairment of
government business.

Basic Provisions/Requirements
The Act requires contractors and subcontractors performing services on prime
contracts in excess of $2,500 to pay service employees in various classes no less
than the wage rates and fringe benefits found prevailing in the locality, or the rates
(including prospective increases) contained in a predecessor contractor’s collective
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

bargaining agreement. The Department of Labor issues wage determinations on a
contract-by-contract basis in response to specific requests from contracting agencies.
These determinations are incorporated into the contract.
For contracts equal to or less than $2,500, contractors are required to pay the federal
minimum wage of $5.15 an hour (as of September 1, 1997) as provided in Section
6(a)(1) of the Fair Labor Standards Act. Contractors must also, under the provisions of
the Contract Work Hours and Safety Standards Act and the Fair Labor Standards Act,
pay employees at least one and one-half times their regular rate of pay for all hours
worked over 40 in a workweek.
In addition, no part of the contract work may be performed in buildings, surroundings,
or under working conditions that are unsanitary, hazardous, or dangerous to the
safety and health of employees. Finally, employers must notify employees working
in connection with the contract of the compensation due them under the wage
and fringe benefits provisions of the contract.

Employee Rights
The SCA provides covered service workers on federal service contracts the right to
receive at least the locally prevailing wage rate and fringe benefits, as determined by
the Department of Labor, for the type of work performed. The Wage and Hour Division
of the Employment Standards Administration accepts complaints of alleged SCA
wage violations.

Compliance Assistance Available
The Wage and Hour Division enforces the wage and hour requirements of the Act,
while the Occupational Safety and Health Administration (OSHA) enforces its safety
and health requirements. More detailed information, including copies of explanatory
brochures and regulatory and interpretative materials, may be obtained from the local
offices of the Wage and Hour Division or from www.dol.gov/esa/whd. More detailed
information about safety and health requirements may be obtained from OSHA
(1–800–321– OSHA).

Penalties/Sanctions
Violations of the SCA may result in contract terminations and liability for any resulting
costs to the government, withholding of contract payments in sufficient amounts
to cover wage and fringe benefit underpayments, legal action to recover the
underpayments, and debarment from future contracts for up to three years.
Contractors and subcontractors may challenge determinations of violations and
debarment before an administrative law judge. Contractors and subcontractors may
appeal decisions of administrative law judges to the Administrative Review Board.
Final Board determinations on violations and debarment may be appealed to and
are enforceable through the federal courts.

Relation to State, Local and Other Federal Laws
This Act applies only to contracts awarded by the federal or District of Columbia
governments. As noted above, contractors are required to compensate employees
working in connection with covered contracts for overtime work in accordance with
the overtime pay standards of the Fair Labor Standards Act and the Contract Work
Hours and Safety Standards Act.
81

Prevailing Wages in Construction
Contracts
Davis–Bacon Act and Related Acts
(40 USC §276a; 29 CFR 1, 3, 5, 6 and 7)
Who is Covered
The Davis–Bacon and Related Acts apply to contractors and subcontractors
performing on federally funded or assisted contracts in excess of $2,000 for the
construction, alteration, or repair (including painting and decorating) of public
buildings or public works.

Basic Provisions/Requirements
The Act requires that all contractors and subcontractors performing on federal
contracts (and contractors or subcontractors performing on federally assisted
contracts under the related Acts) in excess of $2,000 pay their laborers and
mechanics not less than the prevailing wage rates and fringe benefits (as determined
by the Secretary of Labor) for corresponding classes of laborers and mechanics
employed on similar projects in the area.
Apprentices and trainees may be employed at less than predetermined rates.
Apprentices must be employed pursuant to an apprenticeship program registered
with the Department of Labor or with a state apprenticeship agency recognized by
the Department. Trainees must be employed pursuant to a training program certified
by the Department.
Contractors and subcontractors on prime contracts in excess of $100,000 are also
required, pursuant to the Contract Work Hours and Safety Standards Act, to pay
employees one and one-half times their basic rates of pay for all hours over
40 worked on covered contract work in a workweek.
Covered contractors and subcontractors are also required to pay employees weekly
and to submit weekly certified payroll records to the contracting agency.

Employee Rights
The Davis–Bacon and Related Acts provide laborers and mechanics on covered
federally financed or assisted construction contracts the right to receive at least the
locally prevailing wage rate and fringe benefits, as determined by the Department of
Labor, for the type of work performed. The Wage and Hour Division and respective
federal contracting agencies accept complaints of alleged Davis–Bacon violations.

Compliance Assistance Available
The Wage and Hour Division of the Employment Standards Administration administers
and enforces the Davis–Bacon Act. More detailed information, including copies of
explanatory brochures and regulatory and interpretative materials, may be obtained
by contacting the Wage and Hour Division’s local offices (1–866–4USWAGE).
Compliance assistance information may also be obtained on the Wage and Hour
Division’s Web site (www.wagehour.dol.gov).

Penalties/ Sanctions
Contractors or subcontractors found to have disregarded their obligations to
employees, or to have committed aggravated or willful violations while performing
work on Davis–Bacon covered projects, may be subject to contract termination and
debarment from future contracts for up to three years. In addition, contract payments
may be withheld in sufficient amounts to satisfy liabilities for unpaid wages and
liquidated damages that result from overtime violations of the Contract Work Hours
and Safety Standards Act.
Contractors and subcontractors may challenge determinations of violations and
debarment before an administrative law judge. Contractors and subcontractors may
appeal decisions by administrative law judges with the Department’s Administrative
Review Board. Final Board determinations on violations may be appealed to and are
enforceable through the federal courts.
Falsification of certified payroll records or the required kickback of wages may subject
a contractor or subcontractor to civil or criminal prosecution, the penalty for which
may be fines and/or imprisonment.

Relation to State, Local and Other Federal Laws
Since 1931, Congress has extended the Davis–Bacon prevailing wage requirements
to some 60 related Acts which provide federal assistance for construction through
loans, grants, loan guarantees and insurance. These Acts include by reference
the requirements for payment of the prevailing wages in accordance with the
Davis–Bacon Act. Examples of the related Acts are the Federal-Aid Highway Acts,
the Housing and Community Development Act of 1974, and the Federal Water
Pollution Control Act.

Hours and Safety Standards In
Construction Contracts
Contract Work Hours and Safety Standards Act
(CWHSSA) (40 USC §327 et seq.; 29 CFR 5)
Who is Covered
The Contract Work Hours and Safety Standards Act (CWHSSA) 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 Act also extends to federally assisted construction contracts subject to
Davis–Bacon related Act 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 this Act. These include contracts for the following:
■

Transportation by land, air, or water;

■

Transmission of intelligence;

■

Purchase of supplies, materials, or articles ordinarily available in the “open market”;
and

■

Work required to be done according to provisions of the Walsh–Healey Public
Contracts Act.

Basic Provisions/Requirements
The Act 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.
This Act also prohibits unsanitary, hazardous, or dangerous working conditions in
the construction industry on federal and federally financed and assisted projects.

Employee Rights
The 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.

Compliance Assistance Available
The Wage and Hour Division of the Employment Standards Administration enforces
the compensation requirements of this Act, while the Occupational Safety and
Health Administration enforces the safety and health requirements. More detailed
information, including copies of explanatory brochures and regulatory and
interpretative materials, may be obtained by contacting the Wage and Hour Division’s
local offices (1–866–4USWAGE). Compliance assistance information may also be
obtained on the Wage and Hour Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Contractors or subcontractors who violate this Act may be subject to fines,
imprisonment, or both. Intentional violations of this Act are misdemeanors and
may be punished by a fine not to exceed $1,000 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 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 Act 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 Laws
The provisions of this Act 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.

“Kickbacks” in Federally Funded
Construction
Copeland Act (18 USC §874 and 40 USC §276c;
29 CFR 3)
Who is Covered
The “Anti-Kickback” section of the Copeland Act applies to all contractors and
subcontractors performing on any federally funded or assisted contract for the
construction, prosecution, completion or repair of any public building or public
work, except contracts for which the only federal assistance is a loan guarantee.
This provision applies even where no labor standards statute covers the contract.
The regulations pertaining to Copeland Act payroll deductions and submittal of
the weekly statement of compliance apply only to contractors and subcontractors
performing on federally funded contracts in excess of $2,000 and federally-assisted
contracts in excess of $2,000 that are subject to federal wage standards.

Basic Provisions/Requirements
The “Anti-Kickback” section of the Act precludes a contractor or subcontractor
from in any way inducing an employee to give up any part of the compensation to
which he or she is entitled under his or her contract of employment. The Act and
implementing regulations require a contractor and subcontractor to submit a weekly
statement of the wages paid to each employee performing on covered work during
the preceding payroll period. The regulations also list payroll deductions that are
permissible without the approval of the Secretary of Labor and those deductions
that require consent of the Secretary of Labor.

Employee Rights
The “Anti-Kickback” provisions of the Copeland Act give covered workers on
subject federal contracts the right to receive the full pay to which they are entitled
for the work they perform. The Act also gives such workers the right to receive pay
on a weekly basis. The Wage and Hour Division of the Employment Standards
Administration accepts complaints of alleged Copeland Act wage violations.

Compliance Assistance Available
The Wage and Hour Division enforces the provisions of the Act and implementing
regulations. More detailed information, including copies of the regulatory materials,
may be obtained by contacting the local Wage and Hour offices (1– 866 – 4USWAGE).
The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it
is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information provided is complete and
accurate as of the time of publication and this will continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our toll-free service at 1–866–4–USA–DOL (1–866–487–2365).

Compliance assistance information may also be obtained on the Wage and Hour
Division’s Web site (www.wagehour.dol.gov).

Penalties/Sanctions
Any contractor or subcontractor who induces an employee working on a covered
contract to give up any part of the compensation to which he or she is entitled
is subject to a $5,000 fine, or imprisonment for up to five years, or both. Willful
falsification of the statement of compliance may subject the employer to civil or
criminal prosecution and may be cause for contract termination or debarment.
Contractors may challenge determinations on debarment before an administrative law
judge. Decisions of administrative law judges may be appealed to the Administrative
Review Board. Final determinations on debarment may be appealed to and are
enforceable through the federal courts. Civil and criminal sanctions are pursued
through the federal courts.

Relation to State, Local and Other Federal Laws
The “Anti-Kickback” provisions apply to any contract assisted in whole or in part by
loans or grants from the federal government, except those contracts where the only
federal assistance is a loan guarantee. The provisions of the Act and the regulation
pertaining to the weekly statement of wages and payroll deductions apply to federally
assisted contracts that are subject to federal wage standards.

Employment Discrimination and
Equal Opportunity in Supply and
Service Contracts
Executive Order 11246, as amended (Parts II,
III, and IV) (41 CFR Chapter 60, Parts 60-1,
60-2, 60-3, 60-20, and 60-50)
Who is Covered
Executive Order 11246 and its implementing regulations cover employers with
federal contracts or subcontracts that exceed $10,000 or that will (or can reasonably
be expected to) accumulate to more than $10,000 in any 12-month period.
Contracts covered by the Executive Order and regulations may be for the purchase,
sale or use of personal property, nonpersonal services, or both. In this context, the
term “personal property” includes supplies and contracts for the use of real property,
such as lease arrangements, unless the contract for the use of real property is itself
considered real property (such as with easements). The term “nonpersonal services”
includes services such as utilities, construction, transportation, research, insurance,
and fund depository. Agreements in which the parties stand in the relationship of
employer and employee are not covered.
The following types of contracts and subcontracts are exempt from the Executive
Order:
■

Those not exceeding $10,000;

■

Those for indefinite quantities, unless the purchaser has reason to believe that
the cost in any one year will be over $10,000; and

■

Those for work that is performed outside the U.S. by employees who were not
recruited in the U.S.

Specific exemptions may apply to the following:
■

Contracts and subcontracts with certain religiously-oriented educational institutions;

■

Contracts and subcontracts for work on or near Indian reservations;

■

Contracts and subcontracts involving national security, if the head of the contracting
agency determines both that (1) the contract is essential to national security, and
(2) noncompliance with a particular requirement of the Executive Order or the
regulations with respect to the process of awarding the contract is essential to
national security;

■

Specific contracts or subcontracts, if the Deputy Assistant Secretary decides
that special circumstances in the national interest require such an exemption;

■

Contractor facilities not related to contract performance, as determined by the
Office of Federal Contract Compliance Programs (OFCCP); and

■

Contracts and subcontracts with state or local governments, except for the
specific government entity that participates in work on or under the contract.

Moreover, contractors or subcontractors that are religious entities may grant
employment preferences to individuals of a particular religion to perform work
connected with carrying out the activities of the religious entity.

Basic Provisions/Requirements
The Executive Order requires covered contractors and subcontractors to refrain
from discrimination and to engage in affirmative steps to ensure that applicants and
employees receive equal employment opportunity regardless of race, color, religion,
sex, and/or national origin. Sexual harassment is a violation of the Executive Order.
The Order requires all covered contractors and subcontractors to include a specific
equal opportunity clause in each of their nonexempt contracts and subcontracts.
The Order and the regulations provide the required language (www.dol.gov/esa/regs/
statutes/ofccp/eo11246.htm) for this clause.
The Department of Labor’s regulations prohibit discrimination in such employment
practices as recruitment, rates of pay, upgrading, layoff, promotion, and selection for
training. Employers may not make distinctions based on race, color, religion, sex or
national origin in recruitment or advertising efforts, employment opportunities, wages,
hours, job classifications, seniority, retirement ages, or job fringe benefits such as
employer contributions to company pension or insurance plans. The regulations
include other requirements, such as those summarized below.
Nonconstruction (supply and service) contractors and subcontractors that employ
50 or more persons and that also satisfy at least one of four additional criteria (e.g.,
having a federal contract of $50,000 or more) must develop written affirmative action
programs (AAPs). Usually an AAP must cover each of the contractor’s establishments.
If a contractor wishes to establish an AAP other than by establishment, the contractor
may reach agreement with OFCCP on the development and use of functional AAPs,
which are organized along functional or business lines. The AAP is a management
tool designed to encourage equal employment opportunity.
In general, the AAP will describe the policies, practices and procedures that the
contractor or subcontractor uses to ensure that all qualified applicants and employees
receive equal opportunities for employment and advancement. If the contractor or
subcontractor is not employing women or minorities at a rate to be expected given
their availability in the relevant labor pool, the AAP will include specific practical steps
to address the issue. Contractors with AAPs must implement them, keep them on file,
and update them annually. Additional information on AAPs may be found at
www.dol.gov/esa/regs/fedreg/final/2000028693.htm.
Covered contractors and subcontractors, regardless of company size, may not use
exclusionary policies that treat men and women differently. For example, a contractor
or subcontractor that hires or promotes a man who has young children cannot deny
a job or a promotion to a woman because she has young children.

Covered contractors and subcontractors also may not depend on state “protective”
laws to deny employment to qualified female applicants. Such “protective” laws
include those prohibiting women from performing certain types of occupations,
from working more than a certain number of hours, or from lifting more than a certain
amount of weight.
Covered contractors and subcontractors that qualify as “employers” under Title VII of
the Civil Rights Act of 1964 are required to comply with the Pregnancy Discrimination
Act of 1978. Additional information on this law may be found at www.eeoc.gov/
facts/fs-preg.html. All covered contractors and subcontractors must also provide
equal fringe benefits, and make equal contributions for such benefits for men and
women.
Moreover, employers are required to take all necessary actions to ensure that no one
attempts to intimidate or discriminate against an individual for filing a complaint or
participating in a proceeding under the Executive Order.

Employee Rights
Anyone has the right to file a complaint with OFCCP if he or she believes that a federal
contractor or subcontractor has discriminated on the basis of race, color, religion, sex
or national origin. In most cases, complaints must be filed within 180 days of the
discriminatory action. Anyone may call OFCCP with a question about interpreting
the regulations, filing a complaint, or any other related matter. The main telephone
numbers for OFCCP’s national offices are 202–693–0101 and 202–693–1308 (TTY).

Compliance Assistance Available
More detailed information, including copies of explanatory brochures and
regulatory and interpretative materials, may be obtained from the OFCCP Web site
(www.dol.gov/esa/ofccp) or by contacting OFCCP’s local offices (www.dol.gov/esa/
contacts/ofccp/ofcpkeyp.htm).

Penalties/Sanctions
OFCCP investigates for violations of the Executive Order through compliance
evaluations or in response to complaints. If a violation is found, OFCCP may ask
the federal contractor or subcontractor to enter into conciliation negotiations. If
conciliation efforts fail, OFCCP may, through its attorneys, (1) initiate an administrative
enforcement proceeding by filing an administrative complaint against the contractor,
or (2) refer the matter to the Department of Justice for action by the Attorney General.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days
to request a review by an administrative law judge (ALJ), who hears the case and
recommends a decision. If the contractor or subcontractor is dissatisfied with the
ALJ’s decision, it may appeal the decision to the Department of Labor’s Administrative
Review Board. The Board issues the final decision, whether or not there is an appeal.
If the Board finds that the contractor or subcontractor has violated the Executive
Order, it may order the contractor or subcontractor to provide appropriate relief,
which may include restoration of back pay and employment status and benefits for
the victim(s) of discrimination. Depending on the circumstances, violations also may
result in cancellation, suspension, or termination of contracts, withholding of progress
payments, debarment, and/or other sanctions.

If the contractor or subcontractor is dissatisfied with the Board’s decision, it may
appeal that decision to the federal courts.

Relation to State, Local and Other Federal Laws
OFCCP generally refers individual complaints alleging discrimination based on
race, color, religion, sex, or national origin to the Equal Employment Opportunity
Commission (www.eeoc.gov) for investigation and resolution.
The Executive Order and its implementing regulations apply only to the specific state
or local government entities that participate in work on or under a federal contract
or subcontract. This coverage is narrower than that which applies to private sector
employers.

Employment Discrimination in
Construction Contracts
Executive Order 11246, as amended (Parts II,
III, and IV) (41 CFR Chapter 60, Parts 60-1,
60-3, 60-4, 60-20 and 60-50)
Who is Covered
Executive Order 11246 and its implementing regulations cover employers with
federal contracts or subcontracts that exceed $10,000, or that will (or can reasonably
be expected to) accumulate to more than $10,000 in any 12-month period.
Covered contracts may be for the purchase, sale or use of personal property,
nonpersonal services, or both. In this context, the term “nonpersonal services”
includes services such as construction. Agreements where the parties stand in
the relationship of employer and employee are not covered.
In addition, the Executive Order and the regulations cover contractors and
subcontractors who hold any federally assisted construction contract in excess of
$10,000. Under Section III of the Executive Order, in all contracts for construction
to be financed wholly or partially by federal financial assistance, all applicants for
federal financial assistance must include a specific clause notifying the construction
contractor that it is covered by the Executive Order. All applicants must also agree
to cooperate with the Secretary of Labor in enforcing the Order.
The following types of contracts and subcontracts are exempt from the Executive
Order:
■

Those not exceeding $10,000;

■

Those for indefinite quantities, unless the purchaser has reason to believe that the
cost in any one year will be over $10,000; and

■

Those for work that is performed outside the U.S. by employees who were not
recruited in the U.S.

Specific exemptions may apply to the following:
■

Contracts and subcontracts with certain religiously-oriented educational institutions;

■

Contracts and subcontracts for work on or near Indian reservations;

■

Specific contracts or subcontracts, if the Deputy Assistant Secretary decides
that special circumstances in the national interest require such an exemption;

■

Contractor facilities not related to contract performance, as determined by
the Office of Federal Contract Compliance Programs (OFCCP); and

■

Contracts or subcontracts with state or local governments, except for the
specific government entity that participates in work on or under the contract.

Basic Provisions/Requirements
The Executive Order and the regulations require covered contractors and
subcontractors to refrain from discrimination and take affirmative steps to ensure
that applicants and employees receive equal employment opportunity regardless
of race, color, religion, sex, and/or national origin.
Covered contractors and subcontractors must make good faith efforts to achieve
goals set by OFCCP for the employment of women and minorities in all crafts and
trades in their area. These contractors and subcontractors must pursue such goals
on all their construction work, whether or not federal or federally assisted. They must
also include a specific equal opportunity clause in each of their nonexempt contracts
and subcontracts. The Order and the regulations provide the required language
(www.dol.gov/esa/regs/statutes/ofccp/eo11246.htm) for this clause.
Although they are not required to create written affirmative action programs (AAPs),
construction contractors and subcontractors must follow the regulations that require
federal and federally assisted construction contractors and subcontractors to take
specific affirmative steps to ensure equal employment opportunity. Contractors and
subcontractors must also fully document their affirmative action efforts.
All construction contractors and subcontractors, whether or not federally assisted,
are prohibited from discrimination based on race, color, religion, sex, and national
origin in such employment practices as recruitment, rates of pay, hours, upgrading,
layoff, promotion, selection for training, advertising efforts, job classifications, seniority,
retirement ages, or job fringe benefits such as employer contributions to company
pension or insurance plans. Sexual harassment is also a violation of the
nondiscrimination provisions of the Executive Order.
The regulations also include other specific requirements, such as those summarized
below.
■

Covered contractors and subcontractors, regardless of company size, are barred
from using exclusionary policies that treat men and women differently. For
example, a contractor or subcontractor that hires or promotes a man who has
young children cannot deny a job or a promotion to a woman because she has
young children.

■

Covered contractors and subcontractors that qualify as “employers” under
Title VII of the Civil Rights Act of 1964 are required to comply with the Pregnancy
Discrimination Act of 1978. Additional information on this law may be found at
www.eeoc.gov/facts/fs-preg.html. Such employers must also provide equal fringe
benefits, and make equal contributions for such benefits, for men and women.

■

Covered contractors and subcontractors are required to take all necessary actions
to ensure that no one attempts to intimidate or discriminate against an individual
for filing a complaint or participating in a proceeding under the Executive Order.

Employee Rights
Anyone has the right to file a complaint with OFCCP if he or she believes that a federal
contractor or subcontractor has discriminated on the basis of race, color, religion, sex,
or national origin. In most cases, complaints must be filed within 180 days of the
discriminatory action. Anyone may call OFCCP with a question about interpreting
the regulations, filing a complaint, or any other related matter. The main telephone
numbers for OFCCP’s national offices are 202–693–0101 and 202–693–1308 (TTY).

Penalties/Sanctions
OFCCP investigates for violations of the Executive Order either through compliance
evaluations or in response to complaints. If a violation is found, OFCCP may ask the
contractor or subcontractor to enter into conciliation negotiations. If conciliation
efforts fail, OFCCP may (1) initiate an administrative enforcement proceeding by
filing an administrative complaint against the contractor, or (2) refer the matter to
the Department of Justice for action by the Attorney General.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days
to request a review by an administrative law judge (ALJ), who hears the case and
recommends a decision. If the contractor or subcontractor is dissatisfied with the
ALJ’s decision, it may appeal the decision to the Department of Labor’s Administrative
Review Board. The Board issues the final decision, whether or not there is an appeal.
If the Board finds that the contractor or subcontractor has violated the Executive
Order, it may order the contractor or subcontractor to provide appropriate relief,
which may include restoration of back pay and employment status and benefits for
the victim(s) of discrimination. Depending on the circumstances, violations also may
result in cancellation, suspension, or termination of contracts, withholding of progress
payments, and debarment.
If the contractor or subcontractor is dissatisfied with the Board’s decision, it may
appeal that decision to the federal courts.

Relation to State, Local and Other Federal Laws
OFCCP generally refers individual complaints alleging discrimination based on
race, color, religion, sex or national origin to the Equal Employment Opportunity
Commission (www.eeoc.gov) for investigation and resolution.
The Executive Order and its implementing regulations apply only to the specific state
or local government entities that participate in work on or under a federal contract or
subcontract. This coverage is narrower than that which applies to employers in the
private sector.

Equal Opportunity for Individuals
with Disabilities
Rehabilitation Act of 1973, as amended
(29 USC §793; P.L. 93-112, Section 503;
41 CFR Chapter 60, Part 741 and 742)
Who is Covered
Section 503 of the Rehabilitation Act of 1973, as amended, requires employers with
federal contracts or subcontracts that exceed $10,000, and contracts or subcontracts
for indefinite quantities (unless the purchaser has reason to believe that the cost in
any one year will not exceed $10,000), to take affirmative steps to hire, retain, and
promote qualified individuals with disabilities. The regulations implementing Section
503 make clear that this obligation to take affirmative steps includes the duty to refrain
from discrimination in employment against qualified individuals with disabilities.
The following types of contracts and subcontracts are exempt from Section 503:
■

Those not exceeding $10,000;

■

Those for work that is performed outside the U.S.; and

■

Those with state or local governments, except for the specific government
entity that participates in work on or under the contract.

The Deputy Assistant Secretary may grant a waiver from the requirements of Section
503 in the following circumstances:
■

For specific contracts, subcontracts or purchase orders, if special circumstances
in the national interest require such an exemption;

■

For facilities not connected to performance of the federal contract, upon the
written request of the contractor, if certain conditions listed in the regulations are
met. This type of waiver will terminate, at the very latest, two years after the date
on which the waiver is granted, and earlier under certain specific circumstances;
and

■

Under Section 503 and its implementing regulations, an “individual with a disability”
means a person who (1) has a physical or mental impairment that substantially limits
one or more major life activities, (2) has a record of such impairment, or (3) is
regarded as having such an impairment.
A “qualified individual with a disability” means a person with a disability who
satisfies the job-related requirements of the employment position he or she holds or
is applying for, and who, with or without reasonable accommodation, can perform
the essential job functions of that position.
Additional information on the definitions of “individual with a disability” and
“qualified individual with a disability” can be found in several of the Enforcement
Guidances published by the Equal Employment Opportunity Commission (EEOC).
These Guidances may be found at www.eeoc.gov/policy/guidance.html.

Basic Provisions/Requirements
Under Section 503 and its implementing regulations, covered employers with federal
contracts or subcontracts must take affirmative steps to employ qualified individuals
with disabilities. This obligation covers the full range of employment and personnel
practices, such as recruitment, hiring, rates of pay, upgrading, and selection for
training. All covered contractors and subcontractors must also include a specific
equal opportunity clause in each of their nonexempt contacts and subcontracts.
The regulations provide the required language for this clause.
In addition, Section 503 and its regulations require covered federal contractors
and subcontractors to make reasonable accommodations for the known physical
or mental limitations of qualified individuals with disabilities, unless providing an
accommodation would create an undue hardship. Furthermore, covered contractors
and subcontractors are required to take all necessary actions to ensure that no one
attempts to intimidate or discriminate against any individual for filing a complaint or
participating in a proceeding under Section 503.
Under Section 503, each employer that has both (1) a federal contract or subcontract
of $50,000 or more, and (2) 50 or more employees, must prepare, implement, and
maintain a written affirmative action program covering each of its establishments.
The employer must review and update the program annually and must make it
available for inspection by any employee or applicant for employment, as well as
by the Office of Federal Contract Compliance Programs (OFCCP). The program may
be integrated with, or kept separate from, any other affirmative action program the
employer is required to prepare.

Employee Rights
Employees of and applicants for employment with a covered contractor or
subcontractor have the right to file a complaint with OFCCP if they believe that a
federal contractor or subcontractor has discriminated against them on the basis of a
disability. Anyone may call OFCCP with a question about interpreting the regulations,
filing a complaint, or any other related matter. The main telephone numbers for
OFCCP’s national offices are 202–693–0101 and 202–693–1308 (TTY).

Penalties/Sanctions
OFCCP investigates for violations of Section 503 either through compliance evaluations
or in response to complaints. If a violation is found, OFCCP may ask the federal
contractor or subcontractor to enter into conciliation negotiations. If conciliation
efforts fail, OFCCP may initiate an administrative enforcement proceeding by issuing
an administrative complaint against the contractor or subcontractor.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days
to request a review by an administrative law judge (ALJ), who hears the case and
recommends a decision. If the contractor or subcontractor is dissatisfied with the
ALJ’s decision, it may appeal the decision to the Department of Labor’s Administrative
Review Board. The Board issues the final decision, whether or not there is an appeal.
If the Board finds that a violation of Section 503 has occurred, it may order the
contractor or subcontractor to provide appropriate relief, which may include back
pay and benefits, and restoration of employment status, for the victim(s) of
discrimination. Depending on the circumstances, violations also may result in
cancellation, suspension, or termination of contracts, withholding of progress
payments, and debarment.
If the contractor or subcontractor is dissatisfied with the Board’s decision, it may
appeal that decision to the federal courts.

Relation to State, Local and Other Federal Laws
Section 503 and its implementing regulations apply only to the specific state or
local government entities that participate in work on or under a federal contract or
subcontract. This coverage is narrower than that which applies to employers in the
private sector.
Section 107(b) of the Americans With Disabilities Act of 1990 (ADA) required
agencies with enforcement responsibilities under the Rehabilitation Act of 1973
(e.g., OFCCP) and under Title I of the ADA (i.e., the Equal Employment Opportunity
Commission) to develop procedural regulations to ensure that complaints filed under
these laws are addressed in a manner that avoids duplication of effort and prevents
application of inconsistent or conflicting standards for the same requirements under
the two laws. These regulations are found at 41 CFR Part 60-742.

Employment Discrimination and
Equal Opportunity for Certain
Veterans Who Served on Active Duty
and Special Disabled Veterans
Vietnam Era Veterans’ Readjustment Assistance
Act of 1974 (VEVRAA), as amended; Veterans
Employment Opportunities Act of 1998 (VEOA);
and Veterans Benefits and Health Care
Improvement Act of 2000 (38 USC §4212, as
amended; 41 CFR Chapter 60, Part 60-250)
Who is Covered
Title 38 of the U.S. Code, Section 4212, covers employers with federal contracts
or subcontracts for $25,000 or more. Contracts covered by Section 4212 and its
regulations may be for the purchase, sale or use of personal property, nonpersonal
services, or both. In this context, the term “nonpersonal services” includes services
such as construction. Agreements in which the parties stand in the relationship of
employer and employee are not covered.
The following types of contracts and subcontracts are exempt from Section 4212:
■

Those for less than $25,000;

■

Those for indefinite quantities, unless the purchaser has reason to believe that
the cost in any one year will be $25,000 or more;

■

Those for work that is performed outside the U.S.; and

■

Those with state or local governments, except for the specific government
entity that participates in work on or under the contract.

The Deputy Assistant Secretary may grant a waiver from the requirements of Section
4212 in the following circumstances:
■

For specific contracts, subcontracts or purchase orders, if special circumstances
in the national interest require such an exemption;

■

For facilities not related to performance of the contract, as determined by the
Office of Federal Contract Compliance Programs (OFCCP) upon written request
by the contractor; and

■

Contracts and subcontracts involving national security, if the head of the contracting
agency determines both that (1) the contract is essential to national security, and
(2) noncompliance with a particular requirement of Section 4212 or the regulations
with respect to the process of awarding the contract is essential to national security.

Until Congress passed the Veterans Employment Opportunities Act of 1998 (VEOA),
Section 4212 applied to contractors and subcontractors with contracts of more than
$10,000. In addition, only “special disabled veterans” and “veterans of the Vietnam
era” were protected under the section.
In VEOA and later amendments, Congress raised the minimum contract amount to
$25,000 and expanded the application of Section 4212 to include recently separated
veterans and other protected veterans. The regulations implementing Section 4212,
found at 41 CFR part 60-250, will be updated to reflect these changes. Because the
changes are included in Congressional statutes, however, they apply even though the
regulations have not yet been amended.

Definitions
Under Section 4212, a “veteran of the Vietnam era” means a veteran of the U.S.
military, ground, naval, or air service, any part of whose service was during the
period August 5, 1964 through May 7, 1975, who (1) served on active duty for a
period of more than 180 days and was discharged or released with other than a
dishonorable discharge, or (2) was discharged or released from active duty because
of a service-connected disability. “Vietnam era veteran” also includes any veteran of
the U.S. military, ground, naval, or air service who served in the Republic of Vietnam
between February 28, 1961 and May 7, 1975.
A “special disabled veteran” means a veteran who served on active duty in the
U.S. military, ground, naval, or air service and (1) who was discharged or released
from active duty because of a service-connected disability, or (2) who is entitled to
compensation (or who but for the receipt of military retired pay would be entitled to
compensation) for certain disabilities under laws administered by the Department of
Veterans Affairs (i.e., disabilities rated at 30 percent or more, or at 10 or 20 percent
if the veteran has been determined to have a serious employment handicap).
A “recently separated veteran” means any veteran who served on active duty in the
U.S. military, ground, naval, or air service during the one year period beginning on
the date of such veteran’s discharge or release from active duty.
“Other protected veteran” means any other veteran who served on active duty in the
U.S. military, ground, naval, or air service during a war or in a campaign or expedition
for which a campaign badge has been authorized, other than a special disabled
veteran, veteran of the Vietnam era, or recently separated veteran.

Basic Provisions/Requirements
Section 4212 requires covered contractors and subcontractors to take affirmative
steps to employ qualified Vietnam era, special disabled, recently separated, and
other protected veterans. This obligation covers the full range of employment
and personnel practices, such as recruitment, hiring, rates of pay, upgrading,
and selection for training. As part of this obligation, contractors must list most
job openings with the local office of the State Employment Service or with DOL’s
America’s Job Bank. The State Employment Service must give veterans’ priority
when making referrals for job openings.
100

The regulations implementing Section 4212 include the obligation to refrain from
discrimination in employment against protected veterans. The regulations also require
all covered contractors and subcontractors to include a specific equal opportunity
clause in each of their nonexempt contracts and subcontracts. The regulations
provide the required language for this clause.
Covered contractors and subcontractors are also required to make reasonable
accommodations for the known physical or mental limitations of qualified individuals
with disabilities, unless providing an accommodation would create an undue
hardship. In addition, covered contractors and subcontractors are required to take
all necessary actions to ensure that no one attempts to intimidate or discriminate
against any individual for filing a complaint or participating in a proceeding under
Section 4212.
Under Section 4212, each employer that has both (1) a federal contract or
subcontract of $50,000 or more and (2) 50 or more employees must prepare,
implement, and maintain a written affirmative action program covering each of its
establishments. The employer must review and update the program annually, and
it must be available for inspection by any employee or applicant for employment,
as well as by OFCCP. The program may be integrated with, or kept separate from,
any other affirmative action program the employer is required to prepare.

Employee Rights
Employees of and applicants for employment with a covered contractor or
subcontractor have the right to file a complaint with OFCCP if they believe that the
contractor or subcontractor has discriminated against them on the basis of veteran’s
status. Such complaints may be filed online at www.dol.gov/esa/regs/compliance/
ofccp/pdf/pdfstart.htm.
Anyone may call OFCCP with a question about interpreting the regulations, filing a
complaint, or any other related matter. The main telephone numbers for OFCCP’s
national offices are 202–693–0101 and 202–693–1308 (TTY).

Penalties/Sanctions
OFCCP investigates for violations of the Act either through compliance evaluations
or in response to complaints. If a violation is found, OFCCP may ask the federal
contractor or subcontractor to enter into conciliation negotiations. If conciliation
efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing
an administrative complaint against the contractor or subcontractor.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days
to request a review by an administrative law judge (ALJ), who hears the case and
recommends a decision. DOL’s Administrative Review Board issues final decisions.
If the contractor or subcontractor is dissatisfied with the ALJ’s decision, it may appeal
the decision to the Board.

101

If the Board finds that the contractor or subcontractor has violated Section 4212, it
may order the contractor or subcontractor to provide appropriate relief, which may
include restoration of back pay and employment status and benefits for the victim(s)
of discrimination. Depending upon the circumstances, violations also may result in
cancellation, suspension, or termination of contracts, withholding of progress
payments, and debarment.

Relation to State, Local and Other Federal Laws
Section 4212 and its implementing regulations apply only to the specific state or
local government entities that participate in work on or under a federal contract or
subcontract. The coverage is narrower than that which applies to employers in the
private sector.

102

Source Exif Data:

File Type                       : PDF
File Type Extension             : pdf
MIME Type                       : application/pdf
PDF Version                     : 1.4
Linearized                      : Yes
Create Date                     : 2003:03:18 20:23:17Z
Modify Date                     : 2003:05:12 14:45:41-03:00
Page Count                      : 114
Creation Date                   : 2003:03:18 20:23:17Z
Mod Date                        : 2003:05:12 14:45:41-03:00
Producer                        : Acrobat Distiller 5.0.5 (Windows)
Author                          : Cindy
Metadata Date                   : 2003:05:12 14:45:41-03:00
Creator                         : Cindy
Title                           : 001-Cover.pmd
Has XFA                         : No

EXIF Metadata provided by EXIF.tools

001 Cover.pmd Employment Law Guide

Navigation menu

Versions of this User Manual:

Views

Navigation