Sep-22-05 02:50pm From-US DEPT OF LABOR

U.S. Department of Labor Employment Standards Administration

Wage and Hour Division

Washington, D.C. 20210

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SEP 22 2005

> MEMORANDUM NO\_ 199

TO: ALL CONTRACTING AGENCIES OF THE FEDERAL GOVERNMENT AND THE DISTRICT
OF COLUMBIA

FROM\_ ALFRED B. ROBINSON, Jr. ![](media/image2.png){width="0.55625in"
height="0.4673611111111111in"}

Deputy Administrator

SUBJECT: Suspension of the Davis-Bacon Act and the Relaxed Acts in
Louisiana, Mississippi, Alabama, and Florida

On September 8, 2005, President Bush signed a proclamation suspending
the Davis-Bacon

Act in the areas seriously affected by the devastation *resulting* from
Hurricane Katrina. The suspension proclamation, *which can* be accessed
through the White House Web site at
<http://www.whitehouse.gov/news/releases/2005/09/20050908-5.html> was
issued pursuant to

section 6 of the Davis-Bacon Act, 40 U-S.C. 3141 *et seq.,* and also
applies to various related acts as well *as [any]{.underline}* executive
order, proclamation, ^-^ride, regulation, or other directive requiring
Davis-Bacon wage determinations.

This suspension covers all parishes in the State of Louisiana, all
counties in the State of Mississippi, the counties of Baldwin, Choctaw,
Clarke, Mobile, Sumter and Washington in the State of Alabama, and the
counties of Broward, Miami-Dade, and Monroe in the State of Florida. In
the event that a single contract/project requires construction work in
areas covered by the suspension as well as other areas not covered by
the suspension, the Davis­-Bacon provisions must be applied to the work
performed outside of the suspended area(s).

The suspension applies to all contracts entered into on or after
September 8, 2005. and will remain in force until otherwise provided.
Therefore, as of September 8, 2005, agencies should not request wage
determinations or obtain Davis-Bacon wage determinations from
[www.wdol.gov](http://www.wdol.gov/) for contracts to be performed
exclusively in the suspended areas.

In the case of projects assisted under the National Housing Act, the
applicable dale is the beginning of construction or the initial
endorsement of the mortgage, whichever occurs first. Thus, if either
construction began or the initial endorsement occurred before September
8, 2005, the Davis-Bacon labor standards provisions would be applicable
to the project. In the case of projects to receive housing assistance
payments under section 8 of the U.S. Housing Act of 1937, the applicable
date is the beginning of construction or the execution of the

> Sap-22-00 02:50pm From-US DEPT OF LABOR 202 693 1387 T-299 P.O 3/008
> F-791
>
> agreement to enter into ~a~ housing assistance payments contract.
> Thus, if either of thes\~\~ two events occurred before September 8,
> 200\$, be Davis-Bacon provisions would apply to the *project. With
> rempsect to projects undertaken* pursuant to the U.S. Housing Act of
> 1937 and *the Native* American Awing Assistance and Self Determination
> AN of 1996, where there is no contract an rd, the applicable *daze is*
> the-start of constructian. .
>
> Contracts awarded before September 8,2001art rat impacted by this
> suspension, and the determined rates apply to all covered work
> performed on such contracts. Thus, subcontractors to such prime co
> tracts are subject to Davis-Bacoa provisions irrespective of the date
> of the subcontract. The provisions of the Da^-^vis-8acon and related
> Acts and the regulations for enforcemetit of the contract
> requirements,, including the conformance provisions for adding
> additional classifications and wage rates, continue to apply to such
> contracts.
>
> Pursuant to- the *Department of Labor* Regulations, 29 C.P.R. Part 3,
> and the delegations of authority, Secretary\'s *Order. 4\--2001* and
> nag *layne Stanch 3 Order No- 2001-01,* contractors on contracts for
> which the i 6cot\'s proclamation suspended the Davis-Bacon and related
> Acts provisions are exempt. *stunt,* the regulatory requirement in
> section 3.3(b) to submit a weekly statement with respect to ths
> payment of the vngv5 Qv, the Copelaiid Act certified payroll reporting
> requirements in 40 U,S,C. 3145). \'e Anti-Kickback provisions of the
> Copeland Act contained in 18 U„ .C. 874 and the regulations governing
> payroll deductions in 29 C.F.R. Part 3 will continue to apply\_
>
> Agencies should remind their contractors that the rep ordkeepiag
> xecluirements of the Fair labor Standards Act (FLS.A) will apply to
> any employer covered by that Act. The FL requires that the records
> include certain idenffying information about the employee and data
> about the hours worked and the wages earned.
>
> Me Contract Work flours and Safety Standards Act (CWHSSA) overtime
> provisions apply to contracts in excess of *S* 100,000 that may
> *require or involve the employment* of laborers and -mechanics,
> including guards and watchmen (I) upon a public work of the United
> States, or any territory, or of the District of Columbia; (2) to other
> such contracts to which the United States or any agency or
> iastTurnentality, thereof.., any territory or the District of Columbia
> is a party; or (3) to contacts for work financed in whole or in part
> by loans or grants from, or loans insured or guaranteed by, the United
> States or any agency or instrumentality thereof, under ^statutes^ of
> the United States providing wage standards for such work, The
> application of CNVHSSA does not depend on the ^application^ of the
> Davis-Bacon Act. Therefore, the^-^Department has determined
> [that]{.underline} CtGSSA continues to apply to contracts in excess of
> \$100,000 in the swine manner as before the suspension of the
> Davis­Bacon and related Act provisions. The overtime requirements of
> the FLSA also continue to apply. Similar to (WISSAw the ELSA requires
> the payment of no less than time and one. bade employee\'s regular
> iota of pay for hours worked over 45 in a workweek
>
> Pursuant to Department of Labor Regulations, 29 C,F.h.. Part 5,
> section 5.5 (a), the contracting officer is required to insert in full
> [in]{.underline} any covered solicitation or contract for

Sap-22-05 02:50pm From-US DEPT OF LABOR 202 693 1387 T-299 P.004/008
F-791

construaioo the clauses. listed in section-5.5. See 4o Federal
Acquisition. *Regulations at 48 C.F.R. 22-407. Section :5^.^.5(a)qf 29
C. Fit. \'art 5 permits ^modification^ of* contma clauses to
-\'Mect\'lhe particular nerds *of an agency,* provided hat sub
modifications are first approved *by* 6e Department of Labor.
*Therefore,* with respect to those eontwtsaffected the Presidential
*suspension 6ftha* Davis-Bacon and related Acts, the Department hereby
*alloys the omission of the labor ^standards-clauses^ from the affected
contracts with the exception. of certain clauses* listed below \~ that
are necessary *to enforce \' the provisions of the* Copeland Act
and\'CWHSSA.

> 29 QW4 Part *5,* ^section^ 5.5(a)(5) *Con ^;^,pfi41^;^ce with Copeland
> Act requiretnants.*
>
> modified as follows:
>
> *(5) Ccnjpliance with\'CopelandAa requirements. The* contractor shall
> comply viirh *the recylirexac[ks]{.underline} -of 29 CY,R. Part 3
> which, with the* **exceptonaf *29 CE: R. Part 3,***
>
> *section* 3.3, \*are incorporated by reference in &,is contract.
>
> 29 C.F.R. part
>
> ection 5.5(a)(2) *Withhol4ft.*
>
> *29 (00 Parts,* section 5,5(a)(6) *Subcontraciss motlied as follows:*
>
> *(6) Subcontracts. The contractor* or subcontractor shall inseTtin any
> subcontracts the *clauses contained in 29 C.F.R.* Part 5.5(a) as
> applied **herein** and *7,!ch other clauses as the (ti to to* the name
> of be Felvil q;nzy) may by a9pr%miate instruction require, and also a
> clause requiring *the subcontractors to include these clauses in any
> Lower*
>
> tier subcontracts, The prime contractor shall be responsible for the
> compliance by
>
> *any ^subcontractor^ or lower tier subcontractor with all applicable
> contract* clauses in *29^-^CY;R\_ S_5,*
>
> *29 C.F.R\_ Part 5, section 5.5(a.)(7) Contraci raorTnuW\"ladan: debt
> rmew.*
>
> *29 CYR Part 5: section 5.5(a)(S) Compliance ^-^with Davis-Bacon ant\'
> Related Act requireinems.*
>
> *29 C.F.R. Part 5, section 5.5(a)(9) Disputes conceming labor
> Standasdr.*
>
> *29 C.F.R. Part-5, section 5.5(a)(10) Certification cf4gibility.*
>
> *29- C.F,R- Parts, sections 3 5QQ Wntmaxi Work Hours and Safety
> Standardy Act and*
>
> *\$.5(c) in their entirety.*

We recommend that the corresponding clauses omitted or incorporated
accordingly.

Federal Acquisition *Regulaaonz,b*

Questions regarding the implamfuitation of the suspension proclamation
should be\*directed to William Gross at (202) 69M569,

Sep-22-n5 02:54pm From-US DEPT OF LABOR

202 693 1387

> *1-293 P.005/008 F-T91*

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U,S.Dei5artmentof Labor

> Emplo *entSta dards\'* m€\`i n
>
> **wage and\"Hour Division**

***er 20 5***

**Employment** &\'Wages under e;

a

**#\'Lisa *ters ****& **Recovery***

> *The Wage and Hour Division (WM) of the U ; t ofj_abott ^-^ay worker*
> protection laws, including^-^ the Fair Labor Standaxds. Acm (
> LSA},.the F. ly and Medical Leave Mt (FMUI).and the Migrant .\~d
> Seasonal Agnculttunl Worker Protection Act (MSPA). \~ **is.** fwnsh4:g
> avers to some b c questions to ensure that-in this tical dine
> mdividuais are paid
>
> pe ly ^for^ wo±k ^they^ per .
>
> The FLSA is the federal Ia\* of most ral apo ii c on c \... w acrd
> bouts of wpr c he FISA requires employers to pay co \_e =^.^g
> pt:emr\'oy es no less than the fed minimum wage of-\$5.15 an hour fox
> all lours ^actually^ :on..ed anti^,^rn!^.^ertiat the rte of at least
> one and on - halftimes an employee\'s regular rate of pay for of hours
> a-tually worked in excess of 40 in a week. -These requiteuients are
> not subject to waiver drain g natural di-sast and recovery ef€\'orts.
>
> 1\. **Many employees worked during fire week prior toihe storm,
> butbusiness are** now
>
> **closed and. many records** are *destroyed.* Haw do hose employees
> receive their last **paycheck and** haw ***much must** they be **paid
> ***underi ederal law?
>
> The FLSA requires payment of at. least the full mi=hum vrage and
> ovctrue compenza-tioap due a covered employee for the *hours*
> [rhar]{.underline} the employee worked If a last paycheck has been
> delayed because of Hurricane Katrina and an employee has question
> about the FLSA, the employee should call the WAD toll-free help line
> at 1-866-4US-WAGE (1 \_8-4g7-9243).
>
> 2\. How many hours is an employer obligated to pay an hourly-paid
> employee who works a paitlal week because the employer\'s business
> closed as a result of the storm?
>
> The FLSA generally applies-to hours actua:ll Itdoes not require
> employers who e unable to provide work to employ= due to a natural tea
> to o pay non-exempt employees for hours the employees would have
> otherwise worked.
>
> 3\. Can workers receive unemployment mpensationr whi they am out of
> work?
>
> For information about unemploym [insurance]{.underline} and-disaster
> uue .\^ploymept assistance, c4^,^ the,
>
> j )apartment afLabor\'s Employment Training Adrriini t oc \'a: I -866
> -TJSA-DOL (;,-866-437-2365)\' r visit America\`s Service Locator at
> www servicelocator.orglh-urr€cane kat.rLua_info,1t L
>
> 4\. if lndivkiuals volunteerto public agency, are they entitled-to
> compensation?
>
> [lndivkdnal]{.underline} [s]{.underline} who vrslunteer their services
> to a public agency (such as a state, parish, city or qty p-.^,^
> .mment) .iu an em=\' y relief capacity are not consu: \_-z id amp uye
> s due coinpeesaanon wider the FLSA if they.
>
> Perform such services for civic, charitable or humani ari reaso s
> without prom.=,
>
> or receipt of ^compensation.^ The volunteer p ::^-^f v :i.m such
> service may, however, b ~p~ \'d expenses, reasonable benefits or a
> [nominx}]{.underline} fee to perform such services; and,

*Sep-22-05 02:50pm From-US DEPT OF* LABOR

202 693 1387 T-299 P.006/008 F-791

-   Offer their services freely and without coercion,~l~ director
    implied; and,

-   Are not otherwise employed by the same public agency to perform the
    same services as those for which they propose to volunteer.

**5.** if **individuals volunteer to a private not for.** \*ft
**organization, are they entitled to compensation?**

Individuals who volunteer-their services in an emergency relief capacity
to private not-for-profit organizations for religious or humanitarian
objectives, without contemplation or receipt of compensarion,. are not
considered. employees due compensation under the FISA. However,
employees of such organizations may not volunteer to their employers to
perform on an uncompensated basis rhe, same services they are employed
to perform.

***6. What can* employers do *to help their employees,* who\' wish to
volunteer in disaster relief *activities? \'***

Employers may offer employees paid leave for time spent *volunteering to
assist with disaster relief* efforts. Employers wino
[muaintslin]{.underline} leave banks can also allow employees to donate
leave to the *leave* [bank]{.underline} and then award the donated leave
to other employees who, *in* turn, use the leave to volunteer relief
services. The FLSA does snot regulate the provision or use of a leave
bank.

**7. If a governmental authority \"calls up\" workers *from* private
businesses, who is responsible for paying those workers?**

Individuals summoned to engage in national disaster rescue/recovery
efforts by Federal, state or local governments pursuant to statutory
authority ate employees of such governments while so engaged. The
employee\'s regular employer is not liable for FLSA mini mum wage or
overtime payments as a result of work performed for the government.

Where employers are requested to fttrnislu their services, including
*their employees, for disaster relief* under Federal, state or local
general police powers, the employer\'s employees will be considered
employees of the government *while rendedug such services. No hours*
spent on the disaster relief services are counted as hours *worked for
the employer under the* FLSA.

**8. As new workers are hired during the recovery, are employers
required to. verify an employee\'s work eligibility status and complete
Form 1-9, Ernployeo Eligibility Form?**

The Department of Homeland Security announced it will not sanction for
45 days after September 6 employers that \'hire Hurricane Katrina
victims who are unable to provide *documentation required for* an *1-9.
Thus, if* a person does not have the necessary required forms of
ideirtirication as a result of Hurricane Karrina,.an employer can still
hire that person. Employers must still complete the 1-9 with as much
infonualion as possible and note ^complete^ information is not available
due to the hurricane.

**ADDITIONAL *INFORMATION***

For more information reg ding the Fair Labor Standards Act, visit the
Wage and Hour Division Web site at **www.wagehour.datgov** or call our
toll-free help line, available 8 am\_ to S p.m. eastern time; at
1-856-4US-WAGE (1-865487-9243). The FLSA statute appears at 29 U.S.C. §
201 *et seq.*

2

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> **U.S. Department of Labor September 2005 Employment Standards
> Administration** Wage **and Hour Division**

**Guidance on the Suspension of the *bavis-Bacon and Related Acts in
Areas\
*Impacted by Hurricane Katrina**

The *Wage and Hour* Division (WHD) ofthe U.S- Depart t of Labor
administers and enforces

the provisions of the Davis-Bacon A:M *and relayed labor stance
statutes, the Copeiand.\"anti­*

kiclkb ck\" Act, and various other statutes including the Fair Labor
Standards Act (FLSA). This

document provides answers to some basic questions *following the
suspensi:.ou of the Davis­*

Bacon and totaled Act provisions, as well as portions of the Copeland
Act, in areas affected by [Hurricane]{.underline} Katrina to assure
individuals of continued labor standards protections.

***9- If hurricane related* construction is *performed In a State or
county* other than**

> **those listed In the President\'s proclamation, will the Davis-Bacon
> wage rates apply?**

Yes. This suspension only applies to c tiori performed in the parishes
in the State of Louisiana; counties in the State of Mississippi; the
counties of Baldwin, Choctaw. Clarke, Mobile, [Sttmter]{.underline} and
[Washington]{.underline} in the State ofAlab ina; and the counties of
Broward, Miami­

Dade, and Monroe in *the State of Florida. If a single contract or
project requires* connsmtction work in areas covered by the suspension
as well as areas not coveted by the suspension, the

Davis-Bacon provisions must be applied to the work performed outside of
the suspended a =(s).

**2. How long will the suspension last?**

The suspension will remain in farce until r scinded by the President.

**3. If a construction contract was awarded before September , is it
covered by the Davis-Bacon labor standards?**

**Yes.** If a contract was awarded before September 8, the Davis-Bacon
provisions continue to apply to the project Contracts awarded *before*
September 8 are not affected by this suspension, and the determined
taxes apply to all covercd work performed on such contracts.
Subcontractors on prime contracts awarded before September 8 are subject
w Davis-Bacon provisions regardless of when the subcontract was awarded

**4. Will contractors have to submit certified payroll records?**

No. Contractors performing construction work on contracts *affected b y
suspension of the Day* Bacon and related Acts provisions have been
exempted from the regulatory requirement to submit certified payroll
records for the work p armed in the affected *areas. The
\"anti­*kickback\" provisions of the Copeland Act and the regulations
governing payroll deductions continue to apply.

SOP-22-05 *02:51pm From-US DEPT OF* LABOR

**202 693 1387 T-299** P•008/008 F-791

> **5. *\'if contractors* on fed t\"ily.funded
> brmisttd•constrisctlon.contrac#s•are *exempt from ***the.cert2 **d
> payrd;1U•r uirrntients;,do-they have W. maintain. *payroll
> records?\'***
>
> Yes. The recordkeeping requirements of the FLS.A *will* apply to^,^
> any employer covered *by thai* Act The FLSA **rz** uiies that
> the-records hiciude certaht iileiitifyina information about the
> employee and daaa reflecting the forum worked ar d the wages earned.
>
> **6. What other related\' federal tabor laws apply\'**
>
> All other laws continue to provide labor standards^-^ protections for
> orker in the affected areas..
>
> The Contract Work Hours. and Sai\'ery Standards Act overtime
> provisions, which require the . payment of time and- one-half aii
> employee\'s basic hourly rate, continue, to apply to Certain contracts
> in excess of S100^,^~7~000\*
>
> The tinimurn wage, overtime, Baud child^-^labor ^provisions^ ofthe
> [[FL.SA]{.underline}](http://FL.SA/) apply to covered employers and
> employees *in the same uianner as before the.suspensicinl The FLSA
> requires* employers to pay covered note-exempt employees no less
> thah.•the •Fede k **nimum** wage for all\' houis actually \*orked and
> overtime at no less-than one and oii-half times an rz,ployee\'s
> regraar rate of pay. for all hours actually worked in excess of 40 in
> a week.
>
> The FLSA also regulates ibe hours in
> ivhioh^:^individi[uatt]{.underline} under age 16 may bee employed and
> the Secretary of Labor\'s [Ha2\'rdous]{.underline} Occupations Orders
> identify 17 non-agricultural occupations or industries banned for
> minors [imrier]{.underline} agei8. The Department -of Labor\'s
> *).\'om#h;Rufesi* Web site, **ww v.youthrules.doLgov,,provides**
> [inf]{.underline}ormation for employciz., young workers and parents
> about youth ^employment,^ the jobs minors may perform and\' the hoots
> they may work. The Web site includes A video seminar entitled
> *^4^**Youth Working in *****Consfr2wdon\"** that provides valuable
> and^.^ easy to understand information on the rules for teens working
> in the construction industry.
>
> Federal labor laws administered by other agencies such as the
> Occupation Saf and Health Administration may apply. Addiaoral
> information can be *found* on the Department\'s Web site:
>
> **\`vww •[[dol.gov]{.underline}](http://dol.gov/)**
>
> **ADDfTiONAL lNFORMATlON**
>
> For more utfottt on re rain, the l )axis acne ~Act~ and *the* Fair
> Labor Standards **Act, vi t the Wage and Hour DMsiozt Web site at w
> t\'w:wal a ur.dol. ;ov or call our ~toll-:6=~ help line, available 8
> [[sum. to]{.underline}](http://sum.to/) 8 pan. [eastern]{.underline}
> time; at ^\'L\$66^ 4US-WAGE (1-866-X8\'7-9243)- Wage determination and
> other Davis-Bacon related- informmtion may also be obtained at the
> Wage Determination On-Line Web site at v+ v wdoLgov.**

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