Davis Bacon Act Questions About Compliance

Davis Bacon Act Questions About Compliance

Service Contract Act and Davis Bacon Act Questions About Compliance: Hourly Wages Edition

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Need to clarify hourly wages concerns? Then check out the following questions and their answers:

  1. What are the requirements to pay out vacation to an employee after one year?

As stipulated by the wage determination, vacation, for a covered-employee vests on the employee’s anniversary date and is due to the employee (used by the employee with any unused balanced paid out) no later than the following anniversary date.

  1. If the H&W portion is increased, can the contractor decrease the employees pay rate to make up for the amount of the health and welfare (H&W) increase if the resulting pay rate is above the wage determination (WD) or The Fair Labor Standards Act of 1938 (FLSA) minimum wage amount?

A contractor only has to pay the wage rate as specified by the prevailing wage determination. A contractor may lower the wage rates to match up with the WD; however, wages that exceed the WD rate may not be used as a credit against H&W due. Please note than any reduction in wages will likely cause some amount of discontent among covered-employees and should be managed carefully.

  1. And if it is acceptable to reduce the pay rate, would the contractor still be able to request a funding adjustment to make up for the additional H&W cost?

When a new wage determination (WD) is incorporated into a contract, contractors have one month (more specifically 30 days) to file a request for equitable adjustment to recoup costs associated with any increase in wages or H&W due to the new WD.

  1. How are Independent Contractors (specifically vacation and holiday requirements) who work on a sporadic basis on an SCA contract handled? The type of work they perform would be considered non-exempt and therefore subject to SCA.
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Holiday or vacation pay obligations to temporary and part-time employees working an irregular schedule of hours may be dismissed by paying such employees a proportion of the holiday or vacation benefits due full-time employees based on the number of hours each such employee worked in the workweek prior to the workweek in which the holiday occurs, or with respect to vacations, the number of hours which the employee worked in the year preceding the employee’s anniversary date of employment.

  1. Does “fee-based” mean an employee is paid hourly rather than salary?

Fee based usually means an employee is paid per service, (e.g., like a consultant.).

  1. If employees have the option for benefits yet elect none, is providing cash in-lieu (to get the SCA minimum due) still compliant with both the ACA and SCA?

Offering the option of benefits (for the purposes of this answer we will assume benefits include the option to participate in a health care plan) and providing cash in-lieu when the value of benefits falls below the minimum health and welfare due is SCA compliant. However, in order to be ACA compliant, the contractor must offer “affordable” health care to all employees who work more than 30 hours per week. “Affordable” in this instance means employee participation in health care is less than 9.5% of their household income.

  1. 7. What kinds of benefits are included in the bona fide fringe benefits in addition to health care coverage? Does this include 401(k) contributions as well as training and tuition reimbursement, life insurance, etc.?

Bona fide fringe benefits include, but are not limited to the following: health insurance, dental, vision, life insurance, profit sharing, employer 401K contributions, STD, LTD, education assistance, paid sick leave, paid jury duty, and bereavement.

  1. 8. If we pay the employee more than the SCA wage minimum and exceed the H&W insurance minimum and pay the employee a salary is there any reason we must break out H&W and pay?

Yes, SCA wages and H&W should always be reported separately in the pay records and on the pay stub. If the two are reported together it creates the possibility of DOL making a claim that a contractor did not pay H&W.