Appendix A to 29 CFR Part 10 - Contract Clause
29:1.1.1.1.11.5.27.9.5 : Appendix A
Appendix A to 29 CFR Part 10 - Contract Clause
The following clause shall be included by the contracting agency
in every contract, contract-like instrument, and solicitation to
which Executive Order 13658 applies, except for procurement
contracts subject to the Federal Acquisition Regulation (FAR):
(a) Executive Order 13658. This contract is subject to
Executive Order 13658, the regulations issued by the Secretary of
Labor in 29 CFR part 10 pursuant to the Executive Order, and the
following provisions.
(b) Minimum Wages. (1) Each worker (as defined in 29 CFR
10.2) engaged in the performance of this contract by the prime
contractor or any subcontractor, regardless of any contractual
relationship which may be alleged to exist between the contractor
and worker, shall be paid not less than the applicable minimum wage
under Executive Order 13658.
(2) The minimum wage required to be paid to each worker
performing work on or in connection with this contract between
January 1, 2015 and December 31, 2015 shall be $10.10 per hour. The
minimum wage shall be adjusted each time the Secretary of Labor's
annual determination of the applicable minimum wage under section
2(a)(ii) of Executive Order 13658 results in a higher minimum wage.
Adjustments to the Executive Order minimum wage under section
2(a)(ii) of Executive Order 13658 will be effective for all workers
subject to the Executive Order beginning January 1 of the following
year. If appropriate, the contracting officer, or other agency
official overseeing this contract shall ensure the contractor is
compensated only for the increase in labor costs resulting from the
annual inflation increases in the Executive Order 13658 minimum
wage beginning on January 1, 2016. The Secretary of Labor will
publish annual determinations in the Federal Register no later than
90 days before such new wage is to take effect. The Secretary will
also publish the applicable minimum wage on www.wdol.gov (or
any successor Web site). The applicable published minimum wage is
incorporated by reference into this contract.
(3) The contractor shall pay unconditionally to each worker all
wages due free and clear and without subsequent deduction (except
as otherwise provided by 29 CFR 10.23), rebate, or kickback on any
account. Such payments shall be made no later than one pay period
following the end of the regular pay period in which such wages
were earned or accrued. A pay period under this Executive Order may
not be of any duration longer than semi-monthly.
(4) The prime contractor and any upper-tier subcontractor shall
be responsible for the compliance by any subcontractor or
lower-tier subcontractor with the Executive Order minimum wage
requirements. In the event of any violation of the minimum wage
obligation of this clause, the contractor and any subcontractor(s)
responsible therefore shall be liable for the unpaid wages.
(5) If the commensurate wage rate paid to a worker on a covered
contract whose wages are calculated pursuant to a special
certificate issued under 29 U.S.C. 214(c), whether hourly or piece
rate, is less than the Executive Order minimum wage, the contractor
must pay the Executive Order minimum wage rate to achieve
compliance with the Order. If the commensurate wage due under the
certificate is greater than the Executive Order minimum wage, the
contractor must pay the 14(c) worker the greater commensurate
wage.
(c) Withholding. The agency head shall upon its own
action or upon written request of an authorized representative of
the Department of Labor withhold or cause to be withheld from the
prime contractor under this or any other Federal contract with the
same prime contractor, so much of the accrued payments or advances
as may be considered necessary to pay workers the full amount of
wages required by Executive Order 13658.
(d) Contract Suspension/Contract Termination/Contractor
Debarment. In the event of a failure to pay any worker all or
part of the wages due under Executive Order 13658 or 29 CFR part
10, or a failure to comply with any other term or condition of
Executive Order 13658 or 29 CFR part 10, the contracting agency may
on its own action or after authorization or by direction of the
Department of Labor and written notification to the contractor,
take action to cause suspension of any further payment, advance or
guarantee of funds until such violations have ceased. Additionally,
any failure to comply with the requirements of this clause may be
grounds for termination of the right to proceed with the contract
work. In such event, the Government may enter into other contracts
or arrangements for completion of the work, charging the contractor
in default with any additional cost. A breach of the contract
clause may be grounds for debarment as a contractor and
subcontractor as provided in 29 CFR 10.52.
(e) The contractor may not discharge any part of its minimum
wage obligation under Executive Order 13658 by furnishing fringe
benefits or, with respect to workers whose wages are governed by
the Service Contract Act, the cash equivalent thereof.
(f) Nothing herein shall relieve the contractor of any other
obligation under Federal, State or local law, or under contract,
for the payment of a higher wage to any worker, nor shall a lower
prevailing wage under any such Federal, State, or local law, or
under contract, entitle a contractor to pay less than $10.10 (or
the minimum wage as established each January thereafter) to any
worker.
(g) Payroll Records. (1) The contractor shall make and
maintain for three years records containing the information
specified in paragraphs (g)(1) (i) through (vi) of this section for
each worker and shall make the records available for inspection and
transcription by authorized representatives of the Wage and Hour
Division of the U.S. Department of Labor:
(i) Name, address, and social security number.
(ii) The worker's occupation(s) or classification(s)
(iii) The rate or rates of wages paid.
(iv) The number of daily and weekly hours worked by each
worker.
(v) Any deductions made; and
(vi) Total wages paid.
(2) The contractor shall also make available a copy of the
contract, as applicable, for inspection or transcription by
authorized representatives of the Wage and Hour Division.
(3) Failure to make and maintain or to make available such
records for inspection and transcription shall be a violation of 29
CFR part 10 and this contract, and in the case of failure to
produce such records, the contracting officer, upon direction of an
authorized representative of the Department of Labor, or under its
own action, shall take such action as may be necessary to cause
suspension of any further payment or advance of funds until such
time as the violations are discontinued.
(4) The contractor shall permit authorized representatives of
the Wage and Hour Division to conduct investigations, including
interviewing workers at the worksite during normal working
hours.
(5) Nothing in this clause limits or otherwise modifies the
contractor's payroll and recordkeeping obligations, if any, under
the Davis-Bacon Act, as amended, and its implementing regulations;
the Service Contract Act, as amended, and its implementing
regulations; the Fair Labor Standards Act, as amended, and its
implementing regulations; or any other applicable law.
(h) The contractor (as defined in 29 CFR 10.2) shall insert this
clause in all of its covered subcontracts and shall require its
subcontractors to include this clause in any covered lower-tier
subcontracts. The prime contractor and any upper-tier subcontractor
shall be responsible for the compliance by any subcontractor or
lower-tier subcontractor with this contract clause.
(i) Certification of Eligibility. (1) By entering into
this contract, the contractor (and officials thereof) certifies
that neither it (nor he or she) nor any person or firm who has an
interest in the contractor's firm is a person or firm ineligible to
be awarded Government contracts by virtue of the sanctions imposed
pursuant to section 5 of the Service Contract Act, section 3(a) of
the Davis-Bacon Act, or 29 CFR 5.12(a)(1).
(2) No part of this contract shall be subcontracted to any
person or firm whose name appears on the list of persons or firms
ineligible to receive Federal contracts.
(3) The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
(j) Tipped employees. In paying wages to a tipped
employee as defined in section 3(t) of the Fair Labor Standards
Act, 29 U.S.C. 203(t), the contractor may take a partial credit
against the wage payment obligation (tip credit) to the extent
permitted under section 3(a) of Executive Order 13658. In order to
take such a tip credit, the employee must receive an amount of tips
at least equal to the amount of the credit taken; where the tipped
employee does not receive sufficient tips to equal the amount of
the tip credit the contractor must increase the cash wage paid for
the workweek so that the amount of cash wage paid and the tips
received by the employee equal the applicable minimum wage under
Executive Order 13658. To utilize this proviso:
(1) The employer must inform the tipped employee in advance of
the use of the tip credit;
(2) The employer must inform the tipped employee of the amount
of cash wage that will be paid and the additional amount by which
the employee's wages will be considered increased on account of the
tip credit;
(3) The employees must be allowed to retain all tips
(individually or through a pooling arrangement and regardless of
whether the employer elects to take a credit for tips received);
and
(4) The employer must be able to show by records that the tipped
employee receives at least the applicable Executive Order minimum
wage through the combination of direct wages and tip credit.
(k) Antiretaliation. It shall be unlawful for any person
to discharge or in any other manner discriminate against any worker
because such worker has filed any complaint or instituted or caused
to be instituted any proceeding under or related to Executive Order
13658 or 29 CFR part 10, or has testified or is about to testify in
any such proceeding.
(l) Disputes concerning labor standards. Disputes related
to the application of Executive Order 13658 to this contract shall
not be subject to the general disputes clause of the contract. Such
disputes shall be resolved in accordance with the procedures of the
Department of Labor set forth in 29 CFR part 10. Disputes within
the meaning of this contract clause include disputes between the
contractor (or any of its subcontractors) and the contracting
agency, the U.S. Department of Labor, or the workers or their
representatives.
(m) Notice. The contractor must notify all workers
performing work on or in connection with a covered contract of the
applicable minimum wage rate under the Executive Order. With
respect to service employees on contracts covered by the Service
Contract Act and laborers and mechanics on contracts covered by the
Davis-Bacon Act, the contractor may meet this requirement by
posting, in a prominent and accessible place at the worksite, the
applicable wage determination under those statutes. With respect to
workers performing work on or in connection with a covered contract
whose wages are governed by the FLSA, the contractor must post a
notice provided by the Department of Labor in a prominent and
accessible place at the worksite so it may be readily seen by
workers. Contractors that customarily post notices to workers
electronically may post the notice electronically provided such
electronic posting is displayed prominently on any Web site that is
maintained by the contractor, whether external or internal, and
customarily used for notices to workers about terms and conditions
of employment.