McNamara-O’Hara Service Contract Act

Society of Government Travel Professionals Training

Legislative History and Purpose of SCA

To “close the gap” in labor standards protection between supply and manufacturing contracts subject to PCA and construction contracts subject to DBA

To remove wages as a bidding factor in the competition for Federal service contracts

Requirements of SCA

Most Federal service contracts in excess of $2,500 must contain the labor standards clauses and:

Minimum monetary wages and fringe benefits determined by the Secretary of Labor

Record keeping - Posting requirementsSafety and health provisions (29 CFR 1925)Statement of rates paid to Federal employees

Payment of FLSA minimum wage for Federal service contracts of $2,500 or less

Coverage

Contracts entered by United States and the District of Columbia

Contracts principally for services

Contracts performed in the United States

Contracts performed through the use of service employees

Elements of SCA Coverage(29 CFR 4.107, 4.108 & 4.110)

Agencies or instrumentalityDepartment of Defense (DOD)

Wholly owned corporations of the Government U.S. Postal Service

Non-appropriated fund activitiesMilitary post exchanges (PX’s)

Contracts entered into byDistrict of Columbia

Federal Contracting Agencies(29 CFR 4.107 & 4.108)

Contracts to Furnish Services (29 CFR 4.111 & 4.130)

Examples of service contracts:

Security and guard services

Janitorial services

Cafeteria and food services

Support services at Government installations

50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf, American Samoa, Guam, Wake Island, Johnston Island, and the Northern Marianas (Canton Island, Eniwetok Atoll, and Kwajalein Atoll are no longer a part of the United States)

Any portion of a contract principally for service performed in the United States is covered

Contracts “in the US” (29 CFR 4.112)

Section 8(b) of SCA defines service employee as any person engaged in the performance of a covered contract except those that qualify for exemption as bona fide executive, administrative or professional employees under the FLSA (29 CFR Part 541) (See 29 CFR 4.113)

Employee coverage does not depend upon contractual relationship (See 29 CFR 4.155)

Use of “service employees”(29 CFR 4.113)

Contracts Not SCA Covered(29 C.F.R. § 4.134)

• Contracts primarily for something other than services, e.g., construction

• Contracts for leasing of space• Contracts for professional services • Federally-assisted contracts for services

entered into by State governments, e.g., Medicaid and Medicare programs

SCA Statutory Exemptions(41 U.S.C. § 356)

SCA does not apply to the following:

• Contracts for construction of public buildings or public works covered by DBA

• Work required by the provisions of PCA for manufacturing and supplies

• Contracts for carriage of freight or personnel where published tariff rates are in effect (excluding mail haul contracts)

Contracts for services of communications companies (e.g., radio, telephone) subject to the Communications Act of 1934

Contracts for public utility services, including electric light and power, water, steam, and gas

Employment contracts providing for direct services to a Federal agency by individuals

Contracts with the U.S. Postal Service for operation of postal contract stations

SCA Statutory Exemptions (cont’d.)

Standard

• Necessary and proper in the public interest or to avoid serious impairment of government business; and

• In accord with remedial purpose to protect prevailing labor standards

Authority to Grant Exemptions (41 U.S.C. § 353(b)(3))

SCA does not apply to the following:

• Postal Service contracts with common carriers

• Postal Service mail contracts with owner- operators (i.e., individuals, not partnerships)

• Certain items for “commercial services”

Regulatory Exemptions(29 C.F.R. §§ 4.123(d)-(e))

SCA Compliance Principles

– Wages established by contract wage determination (WD) are the minimum rates of pay

– Are calculated on a fixed and regularly recurring workweek of seven consecutive 24-hour workday periodsPayroll records must be kept on this basisA bi-weekly or semi-monthly pay period may be

used if advance notice is given to affected employees

– No distinction is recognized in the compensation requirements between temporary, part-time, and

full-time employees

Payment of Wages (29 CFR 4.165)

• Cash payments in lieu of fringe benefits must be paid on the regular pay date • (29 CFR 4.165)

• Payments into bona fide fringe benefit plans must be made no less often than quarterly• (29 CFR 4.175(d))

• The cost of providing fringe benefits may not be credited towards meeting the SCA wage requirements under the contract • (29 CFR 4.167)

Payment of Fringe Benefits

Under SCA, the contractor may not credit excess

wage payment against the FB obligation:

Wage Determination: Employee Paid: Wage $10.25 Wage $12.36 FB $ 3.71 FB $ 1.60

Total $13.96 Total $13.96

Discharging Minimum Wage & Fringe Benefit Obligations

Fringe Benefits Plans (29 CFR 4.171)

Provide payment of benefits to employees on account of:

• Death• Disability• Advanced age• Retirement• Illness• Medical expenses• Hospitalization• Supplemental unemployment benefits

Health and Welfare (H&W)Fringe Benefits

Three types of FB requirements:

– “Fixed cost” per employee benefits– “Average cost” benefits – Collectively bargained (CBA) benefits

Types and amounts of benefits and eligibility requirements are strictly the contractor’s prerogative

“Fixed cost” benefits (per employee basis)

• The most common type

• Increased to $3.71 per hour on June 17, 2012

• Increased rate must be included in all “invitations for bids” opened, or other service contracts awarded on or after June 17, 2012

• Required to be paid on an individual employee basis for ALL HOURS PAID FOR up to 40 hours in a workweek, including paid leave and holidays, and 2,080 hours a year

H&W Fringe Benefits(29 CFR 4.175(a))

“Fixed cost” H&W ContributionsBi-Weekly Payroll

Employee Hrs. paid FB’s Cash TotalLibby 80 $190.00 106.80 296.80 Jean *100 $180.00 116.80 296.80Ann 20 0.00 74.20 74.20Tim 80 $296.80 0.00 296.80Tom 60 $151.00 145.80 296.80

Total *340 $1261.40

FBs and cash payments may vary so long as total equals $3.71 per hour. 20 hours of overtime

excluded.

“Average cost” Benefits• Contributions may vary depending upon

employee’s marital or employment status• Total contributions must average at least

$3.71 per hour per employee:• On the basis of all “HOURS WORKED” • Excludes paid leave time and holidays

• Compliance determined on a group basis, not an individual basis

H&W Fringe Benefits(29 CFR 4.175(b))

“Average Cost” Benefit Contributions

Employee Hours Worked ContributionsLibby 250 $650Jean 150 $450Ann 250 $650Tim 50 0Tom 100 $250Total 800 $2000

$2000/800 = $2.50 average FB contributions

Employee Hours Shortfall Total Libby 250 $1.21 $302.50 Jean 150 $1.21 $181.50 Ann 250 $1.21 $302.50 Tim 50 $1.21 $60.50 Tom 100 $1.21 $121.00 Total 800 $968.00

$2000 + $968 = $2968/800 hours = $3.71

“Average Cost” Benefits Contributions

H&W Footnotes(Determine Compliance)

Prevailing WDs provide H&W footnote All occupations listed on the WD receive

benefits as specified“Fixed cost” H&W footnote –

– Single line specifying hourly, weekly, and monthly contribution amounts

– Specified on odd numbered WDs

“$3.71 an hour or $148.40 a week or $643.07 a month”

H&W Footnotes (Cont’d)

“Average Cost” H&W footnote - brief paragraph listing types of benefits and hourly contribution and specified on even numbered WDs

“HEALTH & WELFARE: Life, accident, and health insurance plans, sick leave, pension plans, civic and personal leave, severance pay, and savings and thrift plans. Minimum employer contributions must cost an average of $3.71 per hour computed on the basis of all hours worked by service employees employed on the contract.”

Collectively BargainedH&W Fringe Benefits

Based on a CBAAre required to be paid by a successor

contractor under the provisions of section 4(c) of the SCA

Need not provide specifically the fringe benefits stipulated in CBA. Equivalent benefits may be provided

Cash equivalent payments can be used to offset the fringe benefits due

Vacation Fringe Benefits (29 CFR 4.173)

– Are vested and become due after the employee’s anniversary date

– Do not need to be paid immediately after the anniversary date, but must be discharged before, whichever occurs first:The next anniversary date;The completion of the contract; orThe employee terminates employment

Anniversary Date(12-months of Service)

•Employee eligible for vacation benefits•Contractor who employs employee on anniversary date owes vacation•Paid at hourly rate in effect in workweek vacation is taken•H&W benefits due under “Fixed cost” requirements

12-months

of service 6/30/13

7/01/13JJ

entitledvacation

JJ startswork on7/01/12

“Continuous Service” (29 CFR 4.173(a) & (b))

Determines employee’s eligibility for vacation benefits

Is determined by the total length of time an employee has been employed by:Either the present contractor in any capacity,

and/orThe predecessor contractors in the

performance of similar contract functions at the same Federal facility

Contractor’s liability is determined by the WD

Holiday Fringe Benefits(29 CFR 4.174)

If any work is performed in a workweek in which the holiday falls, the employee is entitled to holiday pay

Holiday pay is generally not applicable to days in which the Federal government is closed by proclamation, such as the day before Christmas or on snow days, in other words, any holiday not named in the contract WD

Paid holidays can be traded for another day off with pay in accordance with a plan communicated to the employees involved

Equivalent Fringe Benefits (29 CFR 4.177)

A contractor may:– Dispose of its fringe benefit obligations by

furnishing the benefits listed in the contract WD, or

– Furnish equivalent combinations of bona fide fringe benefits, or

– Make equivalent cash payments Equal in costSeparately stated in employer’s recordNot used to offset wage requirements

Part-time Employees(29 CFR 4.176)

May be paid a proportionate amount of fringe benefits:

Paid Vacation & Holidays:• Full-time employee - one week (40 hours), day (8 hours)• Part-time employee who works 20 hours per week,

entitled to one-half week (20 hours) of vacation, and • Entitled to one-half the holiday pay (4 hours)

H&W:• Same part-time employee entitled to the same hourly rate

($3.71) for 20 hours of work

SCA Overtime Compliance

Overtime Pay

SCA does not provide for premium rates for overtime hours of work, but recognizes other Federal laws that do– Fair Labor Standards Act (FLSA) (29 U.S.C. 201,

et seq.) has the broadest application

– Contract Work Hours and Safety Standards Act (CWHSSA) (40 U.S.C. 327-332) applies to contracts in excess of $100,000 that employ laborers and mechanics

Overtime Pay

Is determined in the same manner under both laws

– Calculated at 1-1/2 times the employee’s basic hourly rate of pay for all hours worked in excess of 40 in a workweek

– Liquidated damages can be assessed under CWHSSA at $10 per day when overtime not properly paid

Overtime Compliance with “Fixed cost” H&W Benefits

An employee worked 44 hours on a covered contract as a janitor at a WD rate of $15 plus $3.71 in “fixed cost” H&W FBs per hour.

40 hours X $3.71 = $148.40 H&W FBs44 hours X $15.00 = $660.00 S/T Wages4 hours X $15.00 x 1/2 = $ 30.00 O/T Pay__

Total $838.40

Overtime Compliance with the “Average Cost” H&W Benefits

An employee worked 44 hours on a covered contract as a janitor at a WD rate of $15 plus $3.71 in “average cost” H&W FBs per hour.

44 hours X $ 3.71 = $163.24 H&W FBs44 hours X $15.00 = 660.00 Wages 4 hours X $15.00 x ½ = 30.00 Overtime Pay Total = $853.24

Disclaimer

This presentation is intended as general information only and does not carry the force of legal opinion.

The Department of Labor is providing this information as a public service. This information and related materials are presented to give the public access to information on Department of Labor programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register and the Code of Federal Regulations remain the official source for regulatory information published by the Department of Labor. We will make every effort to keep this information current and to correct errors brought to our attention.