Vol. 80 Thursday, 

No. 102 May 28, 2015 

Part III 

Department of Labor 

Office of the Secretary 

Guidance for Executive Order 13673, ‘‘Fair Pay and Safe Workplaces’’ 


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30574 Federal Register / Vol. 80, No. 102 / Thursday, May 28, 2015 / Notices 

1The Department will publish in the Federal 

Register at a future date a second proposed 

guidance addressing which State laws are 

equivalent to the 14 Federal labor laws and 

executive orders identified in the Order. 

2The Department recognizes that the Federal 

Acquisition Regulatory Council is considering 

allowing contractors to direct their subcontractors 

to report violations to the Department, which would 

then assess the violations. 

DEPARTMENT OF LABOR 

Office of the Secretary 

ZRIN 1290–ZA02 

Guidance for Executive Order 13673, 

‘‘Fair Pay and Safe Workplaces’’ 

AGENCY: Department of Labor. 

ACTION: Proposed guidance. 

SUMMARY: The Department of Labor is 

proposing guidance to assist federal 

agencies in the implementation of 

Executive Order 13673, Fair Pay and 

Safe Workplaces (the Order). The Order 

was signed by President Barack Obama 

on July 31, 2014, and it contains several 

new requirements designed to improve 

the federal contracting process. The 

Order seeks to increase efficiency and 

cost savings in the work performed by 

parties that contract with the Federal 

Government by ensuring that the parties 

are responsible and comply with labor 

laws. The Order requires federal 

contractors to report whether there has 

been any administrative merits 

determination, civil judgment, or 

arbitral award or decision rendered 

against them during the preceding threeyear period for violations of any of 14 

identified federal labor laws and 

executive orders or equivalent State 

laws.1 Contracting officers and Labor 

Compliance Advisors will assess these 

types of reported violations (considering 

whether the violations are serious, 

repeated, willful, or pervasive) as part of 

the determination of whether a 

contractor has a satisfactory record of 

integrity and business ethics. Labor 

Compliance Advisors will be available 

to consult with contractors that report 

these types of violations and will 

coordinate assistance with the relevant 

enforcement agencies. Contractors will 

require their subcontractors to report 

these types of violations of the 

identified labor laws and will similarly 

assess reported violations.2 And to 

achieve further paycheck transparency 

for workers, contractors and 

subcontractors will be required to 

provide their workers on federal 

contracts with information each pay 

period regarding how their pay is 

calculated (a wage statement) and 

provide notice to those workers whom 

they treat as independent contractors. 

The Order directs the Department of 

Labor to develop guidance to assist 

federal agencies in implementing the 

Order’s requirements. Consistent with 

that direction, this proposed guidance, 

when final, will: define ‘‘administrative 

merits determination,’’ ‘‘civil 

judgment,’’ and ‘‘arbitral award or 

decision,’’ and provide guidance on 

what information related to these 

determinations must be reported by 

contractors and subcontractors; define 

‘‘serious,’’ ‘‘repeated,’’ ‘‘willful,’’ and 

‘‘pervasive’’ violations and provide 

guidance to contracting officers (or 

contractors with respect to their 

subcontractors) and Labor Compliance 

Advisors for assessing reported 

violations, including mitigating factors 

to consider; and provide guidance on 

the Order’s paycheck transparency 

provisions, including identifying those 

States whose wage statement laws are 

substantially similar to the Order’s wage 

statement requirement such that 

providing a worker with a wage 

statement that complies with any of 

those State laws satisfies the Order’s 

requirement. 

The Order builds on the existing 

procurement system, and changes 

required by the Order fit into 

established contracting practices that 

are familiar to both procurement 

officials and the contracting community. 

In addition, the Department of Labor 

will provide support directly to 

contractors and subcontractors so that 

they understand their obligations under 

the Order and can come into 

compliance with federal labor laws 

without holding up their contract bids. 

Finally, the Department will work with 

Labor Compliance Advisors across 

agencies to minimize the amount of 

information that contractors have to 

provide and to help ensure efficient, 

accurate, and consistent decisions 

across the government. 

The objective of the Order is to help 

contractors come into compliance with 

federal labor laws, not to deny them 

contracts. To this end, this proposed 

guidance, when final, will provide a 

roadmap to contracting officers, Labor 

Compliance Advisors, and the 

contracting community for assessing 

contractors’ history of labor law 

compliance with regard to their 

business integrity and ethics and 

considering mitigating factors, most 

notably efforts to remediate any 

reported labor law violations, including 

agreements entered into by contractors 

with enforcement agencies. 

DATES: Comments must be received on 

or before July 27, 2015. 

ADDRESSES: You may submit comments, 

identified by ZRIN 1290–ZA02, by 

either of the following methods: 

Electronic comments: Comments may 

be sent via http://www.regulations.gov, 

a Federal E-Government Web site that 

allows the public to find, review, and 

submit comments on documents that 

agencies have published in the Federal 

Register and that are open for comment. 

Simply type in ‘‘guidance on fair pay 

and safe workplaces’’ (in quotes) in the 

Comment or Submission search box, 

click Go, and follow the instructions for 

submitting comments. 

Mail: Address written submissions to 

Tiffany Jones, U.S. Department of Labor, 

Room S–2312, 200 Constitution Avenue 

NW., Washington, DC 20210. 

Instructions: Please submit only one 

copy of your comments by only one 

method. All submissions must include 

the agency name and ZRIN, identified 

above, for this document. Please be 

advised that comments received will 

become a matter of public record and 

will be posted without change to 

http://www.regulations.gov, including 

any personal information provided. 

Comments that are mailed must be 

received by the date indicated for 

consideration. For additional 

information on submitting comments 

and the guidance process, see the 

‘‘Invitation to Comment’’ section of the 

SUPPLEMENTARY INFORMATION provided 

later in this document. 

Docket: For access to the docket to 

read background documents or 

comments, go to http://

www.regulations.gov. Docket name: Fair 

Pay and Safe Workplaces. Docket ID: 

DOL–2015–0002. 

FOR FURTHER INFORMATION CONTACT: 

Contact Kathleen E. Franks, Director, 

Office of Regulatory and Programmatic 

Policy, U.S. Department of Labor, Room 

S–2312, 200 Constitution Avenue NW., 

Washington, DC 20210; telephone: (202) 

693–5959 (this is not a toll-free 

number). Copies of this proposed 

guidance may be obtained in alternative 

formats (large print, Braille, audio tape 

or disc), upon request, by calling (202) 

693–5959 (this is not a toll-free 

number). TTY/TDD callers may dial 

toll-free [1–877–889–5627] to obtain 

information or request materials in 

alternative formats. 

SUPPLEMENTARY INFORMATION: 

Background 

Although most federal contractors 

comply with applicable laws and 

provide quality goods and services to 

the government and taxpayers, a small 


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3U.S. Government Accountability Office, GAO– 

10–1033, Federal Contracting: Assessments and 

Citations of Federal Labor Law Violations by 

Selected Federal Contractors, Report to 

Congressional Requesters (2010), available at 

http://www.gao.gov/new.items/d101033.pdf. 

4Majority Staff of Senate Committee on Health, 

Education, Labor, and Pensions, Acting 

Responsibly? Federal Contractors Frequently Put 

Workers’ Lives and Livelihoods at Risk, 1 (2013), 

available at http://www.help.senate.gov/imo/media/ 

doc/Labor%20Law%20Violations%20by%20

Contractors%20Report.pdf. 

5 Id. 

6 Id. 

7The Department will set up a structure within 

the Department to consult with Labor Compliance 

Advisors in carrying out their responsibilities and 

duties and to help ensure efficient, accurate, and 

consistent decisions across the government. In 

addition, the Department will be available to 

consult with contractors and subcontractors to 

assist them in fulfilling their obligations under the 

Order. Contractors and subcontractors, before 

bidding, will also be offered the opportunity to 

receive early guidance from the Department and 

other enforcement agencies on whether any of their 

violations of the labor laws are potentially 

problematic, as well as the opportunity to remedy 

any problems. 

number of federal contractors have been 

responsible for a significant number of 

labor law violations in the last decade. 

In 2010, the Government Accountability 

Office issued a report that found that 

almost two-thirds of the 50 largest wageand-hour violations and almost 40 

percent of the 50 largest workplace 

health-and-safety penalties issued 

between FY 2005 and FY 2009 occurred 

at companies that later received 

government contracts.3 In 2013, Senate 

Health, Education, Labor, and Pensions 

Committee Chairman Tom Harkin 

issued a report which revealed that 

dozens of contractors with significant 

health-and-safety and wage-and-hour 

violations continued to receive federal 

contracts.4 Between 2007 and 2012, 49 

federal contractors were cited for 1,776 

separate federal labor law violations and 

paid $196 million in damages and 

penalties.5 In FY 2012, these same 

companies were awarded $81 billion in 

federal contracts.6

Beyond their human cost, these 

violations create risks to the timely, 

predictable, and satisfactory delivery of 

goods and services to the Federal 

Government, and federal agencies risk 

poor performance by awarding contracts 

to companies with histories of labor law 

violations. Poor workplace conditions 

lead to lower productivity and 

creativity, increased workplace 

disruptions, and increased workforce 

turnover. For contracting agencies, this 

means receipt of lower quality products 

and services, and increased risk of 

project delays and cost overruns. 

Contracting agencies can reduce 

execution delays and avoid other 

complications by contracting with 

contractors with track records of labor 

law compliance—and by helping to 

bring contractors with past violations 

into compliance. Contractors that 

consistently adhere to labor laws are 

more likely to have workplace practices 

that enhance productivity and to deliver 

goods and services to the Federal 

Government in a timely, predictable, 

and satisfactory fashion. 

Moreover, by ensuring that its 

contractors are in compliance, the 

Federal Government can level the 

playing field for contractors who 

comply with the law. Those contractors 

who invest in their workers’ safety and 

maintain a fair and equitable workplace 

should not have to compete with 

contractors who offer slightly lower 

bids—based on savings from skirting 

labor laws—and then ultimately deliver 

poor performance to taxpayers. By 

contracting with employers who are in 

compliance with labor laws, the Federal 

Government can ensure that taxpayers’ 

money supports jobs in which workers 

have safe workplaces, receive the family 

leave they are entitled to, get paid the 

wages they have earned, and do not face 

unlawful workplace discrimination. 

Overview of Guidance 

The Order instructs federal agencies 

to work together to implement new 

contracting requirements and processes. 

The Order creates detailed 

implementation roles for the Federal 

Acquisition Regulatory Council (FAR 

Council), the Department of Labor 

(Department), the Office of Management 

and Budget (OMB), and the General 

Services Administration (GSA). These 

agencies will implement the Order in 

stages, on a prioritized basis. 

The Order gives the Department 

several specific implementation and 

coordination duties. The Order directs 

the Secretary of Labor (the Secretary) to 

develop guidance that defines the 

‘‘administrative merits determinations,’’ 

‘‘civil judgments,’’ and ‘‘arbitral awards 

or decisions’’ that contractors and 

subcontractors must report, see § 2(a)(i); 

identifies the State laws that are 

‘‘equivalent’’ to the 14 federal labor laws 

and executive orders for which 

violations must be reported, see 

§ 2(a)(i)(O); assists contracting agencies 

(and contractors with respect to their 

subcontractors) in determining if 

reported violations are ‘‘serious,’’ 

‘‘repeated,’’ ‘‘willful,’’ or ‘‘pervasive,’’ 

see § 4(b)(i); and specifies which State 

wage statement requirements are 

substantially similar to the Order’s 

requirement such that providing a 

worker with a wage statement in 

compliance with one of those State’s 

requirements satisfies the Order’s wage 

statement requirement, see § 5(a). The 

Order also directs the Secretary to 

develop processes for coordination 

between newly designated Labor 

Compliance Advisors in each 

contracting agency and the Department 

and processes by which contracting 

officers and Labor Compliance Advisors 

may give appropriate consideration to 

determinations and agreements made by 

the Department and other enforcement 

agencies. See § 4(b)(ii).7

This proposed guidance satisfies most 

of the Department’s responsibilities for 

issuing guidance, and the Department 

will publish at a later date a second 

guidance that satisfies its remaining 

responsibilities. Section I below 

discusses the reasons for the Order and 

summarizes its requirements. Section II 

defines the terms ‘‘administrative merits 

determination,’’ ‘‘civil judgment,’’ and 

‘‘arbitral award or decision,’’ and 

provides guidance regarding the types of 

information that contractors and 

subcontractors should report under the 

Order. Section III defines the terms 

‘‘serious,’’ ‘‘repeated,’’ ‘‘willful,’’ and 

‘‘pervasive.’’ It also provides guidance 

on how reported violations should be 

assessed and what mitigating factors 

should be considered. Section IV 

provides guidance on the Order’s 

paycheck transparency provisions. It 

identifies and solicits comment on two 

options for determining those States 

whose wage statement laws are 

substantially similar to the Order’s wage 

statement requirement. Section V is an 

invitation to comment, and Section VI 

describes next steps. 

This proposed guidance also provides 

guidelines for how contracting officers 

and Labor Compliance Advisors may 

give appropriate consideration to 

determinations and agreements made 

between contractors and enforcement 

agencies. In addition, the Department 

will publish in the Federal Register at 

a future date a second proposed 

guidance addressing which State laws 

are equivalent to the 14 federal labor 

laws and executive orders identified in 

the Order for which contractors and 

subcontractors must report violations. 

For purposes of this initial proposed 

guidance, however, State plans 

approved by the Department’s 

Occupational Safety and Health 

Administration (OSHA-approved State 

Plans) are equivalent State laws (see 

discussion below). 

As part of the development of this 

proposed guidance, the Department has 

engaged with a range of interested 

parties (including contractors, 


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8 Identifying these two statutes in their entirety 

reflects the Order as amended by section 3 of 

Executive Order 13683, Amendments to Executive 

Orders 11030, 13653, and 13673 (Dec. 11, 2014). 

contracting agencies, and unions) to 

solicit their views on the Order. The 

White House hosted four listening 

sessions to hear their views, ideas, and 

concerns regarding the provisions of the 

Order. The Department found these 

listening sessions helpful and 

considered relevant information raised 

during those sessions in developing this 

proposed guidance. 

Consistent with its efforts to engage 

with interested parties regarding the 

Order, the Department, in its discretion, 

is soliciting public comment on this 

proposed guidance in the manner and 

before the date specified above. 

Agencies are not required to provide 

notice and an opportunity for public 

comment on guidance documents before 

they are adopted, as is generally 

required for formal legislative 

rulemaking and other regulatory action. 

I. Purpose and Summary of the Order 

The Order states that the Federal 

Government will promote economy and 

efficiency in procurement by 

contracting with responsible sources 

that comply with labor laws. See § 1. 

The Order seeks to increase efficiency 

and cost savings in the work performed 

by parties that contract with the Federal 

Government by ensuring that they 

understand and comply with labor laws. 

Id. 

A. Existing Requirements for 

Contracting With Responsible Sources 

By statute, contracting agencies are 

required to award contracts to 

responsible sources. See 10 U.S.C. 

2405(b); 41 U.S.C. 3703. A ‘‘responsible 

source’’ means a prospective contractor 

that, among other things, ‘‘has a 

satisfactory record of integrity and 

business ethics.’’ 41 U.S.C. 113. 

Part 9 of the Federal Acquisition 

Regulation (FAR) implements this 

statutory ‘‘responsibility’’ requirement. 

The FAR states that ‘‘[p]urchases shall 

be made from, and contracts shall be 

awarded to, responsible prospective 

contractors only.’’ 48 CFR 9.103(a). In 

accordance with the statutory definition 

of ‘‘responsible source,’’ the FAR states 

that ‘‘[t]o be determined responsible, a 

prospective contractor must . . . [h]ave 

a satisfactory record of integrity and 

business ethics. . . .’’ 48 CFR 9.104–1. 

In addition, the FAR requires 

contractors on certain contracts to 

disclose to contracting officers any 

‘‘credible evidence’’ that the agents of 

the contractor or any of its 

subcontractors have committed 

violations of federal criminal laws 

involving fraud, conflict of interest, 

bribery, or gratuities or of the civil False 

Claims Act in connection with the 

contract. 48 CFR 52.203–13; see also 48 

CFR 52.209–5 and 52.209–7 (requiring 

disclosures). The FAR also provides 

that, generally, prospective prime 

contractors are responsible for 

determining the responsibility of their 

prospective subcontractors. See 48 CFR 

9.104–4. 

B. Legal Authority 

The President issued the Order, as 

stated therein, pursuant to his authority 

under ‘‘the Constitution and the laws of 

the United States,’’ expressly including 

the Federal Property and Administrative 

Services Act (Procurement Act), 40 

U.S.C. 101 et seq. The Procurement Act 

authorizes the President to ‘‘prescribe 

policies and directives that the 

President considers necessary to carry 

out’’ the statutory purposes of ensuring 

‘‘economical and efficient’’ government 

procurement and administration of 

government property. 40 U.S.C. 101, 

121(a). The Order establishes that the 

President considers the requirements 

included in the Order to be necessary to 

economy and efficiency in federal 

contracting (noting that ‘‘[c]ontractors 

that consistently adhere to labor laws 

are more likely to have workplace 

practices that enhance productivity and 

increase the likelihood of timely, 

predictable, and satisfactory delivery of 

goods and services to the Federal 

Government’’ and that ‘‘[h]elping 

executive departments and agencies 

(agencies) to identify and work with 

contractors with track records of 

compliance will reduce execution 

delays and avoid distractions and 

complications that arise from 

contracting with contractors with track 

records of noncompliance’’). See § 1. 

The Order directs the Secretary to 

define certain terms used in the Order 

and to develop guidance ‘‘to assist 

agencies’’ in implementing the Order’s 

requirements. See §§ 2(a)(i), 4(b). 

C. Summary of the Order’s 

Requirements and Interaction With 

Existing Requirements 

The Order builds on the existing 

procurement system by instructing 

contracting officers to consider a 

contractor’s history of labor laws 

violations, if any, as a factor in 

determining if the contractor has a 

satisfactory record of integrity and 

business ethics and may therefore be 

found to be a responsible source eligible 

for contract award. See §§ 2(a)(ii)–(iii). 

To facilitate this determination, the 

Order provides that, for procurement 

contracts for goods and services, 

including construction, where the 

estimated value of the supplies acquired 

and services required exceeds $500,000, 

each agency shall ensure that provisions 

in solicitations require that the 

contractor represent, to the best of its 

knowledge and belief, whether there has 

been any administrative merits 

determination, civil judgment, or 

arbitral award or decision rendered 

against it within the preceding threeyear period for violations of any of 14 

identified federal labor laws or 

executive orders or any equivalent State 

laws (the Labor Laws). See § 2(a)(i). The 

14 federal labor laws or executive orders 

identified in the Order are: 

• The Fair Labor Standards Act (the 

FLSA); 

• the Occupational Safety and Health 

Act of 1970 (the OSH Act); 

• the Migrant and Seasonal 

Agricultural Worker Protection Act 

(MSPA); 

• the National Labor Relations Act 

(the NLRA); 

• 40 U.S.C. chapter 31, subchapter IV, 

also known as the Davis-Bacon Act (the 

DBA); 

• 41 U.S.C. chapter 67, also known as 

the Service Contract Act (the SCA); 

• Executive Order 11246 of 

September 24, 1965 (Equal Employment 

Opportunity); 

• section 503 of the Rehabilitation 

Act of 1973; 

• the Vietnam Era Veterans’ 

Readjustment Assistance Act of 1972 

and the Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974; 8

• the Family and Medical Leave Act 

(the FMLA); 

• title VII of the Civil Rights Act of 

1964 (Title VII); 

• the Americans with Disabilities Act 

of 1990 (the ADA); 

• the Age Discrimination in 

Employment Act of 1967 (the ADEA); 

and 

• Executive Order 13658 of February 

12, 2014 (Establishing a Minimum Wage 

for Contractors). 

Prior to making an award, contracting 

officers shall, as part of the 

responsibility determination, provide 

contractors with an opportunity to 

disclose any steps taken to correct any 

reported violations or improve 

compliance with the Labor Laws, 

including any agreements entered into 

with an enforcement agency. See 

§ 2(a)(ii). Contracting officers, in 

consultation with the relevant Labor 

Compliance Advisor (LCA), shall then 

consider the information in determining 

if a contractor is a responsible source 

with a satisfactory record of integrity 

and business ethics. See § 2(a)(iii). 


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9The Department recognizes that the FAR 

Council is considering allowing contractors to 

direct their subcontractors to report violations to 

the Department, which would then assess the 

violations. 

10The Order further requires contracting agencies 

to ensure that for all contracts where the estimated 

value of the supplies acquired and services required 

exceeds $1 million, provisions in solicitations and 

clauses in contracts shall provide that contractors 

agree that the decision to arbitrate claims arising 

under Title VII or any tort related to or arising out 

of sexual assault or harassment may only be made 

with the voluntary consent of employees or 

independent contractors after such disputes arise, 

subject to certain exceptions. See § 6. Contracting 

agencies must require contractors to incorporate 

this same requirement into subcontracts where the 

estimated value of the supplies acquired and 

services required exceeds $1 million, subject to 

certain exceptions. Id. The Order does not direct the 

Secretary to address this requirement. 

Similar requirements apply to 

subcontractors where the estimated 

value of the supplies acquired and 

services required in the subcontract 

exceeds $500,000 and the subcontract is 

not for commercially available off-theshelf items. Under the Order, 

contracting officers must require that, at 

the time of execution of the contract, 

contractors represent that they will 

require subcontractors performing 

covered subcontracts to disclose any 

administrative merits determination, 

civil judgment, or arbitral award or 

decision rendered against the 

subcontractor within the preceding 

three-year period for violations of any of 

the Labor Laws. See § 2(a)(iv). The 

contractor will (in most cases, before 

awarding the subcontract) consider the 

information submitted by the 

subcontractor in determining whether 

the subcontractor is a responsible source 

that has a satisfactory record of integrity 

and business ethics. Id. And the 

contractor will incorporate into covered 

subcontracts the requirement that the 

subcontractor disclose to the contractor 

any administrative merits 

determinations, civil judgments, or 

arbitral awards or decisions rendered 

against the subcontractor within the 

preceding three-year period for 

violations of any of the Labor Laws. Id.9

The Order’s reporting requirement 

continues after an award is made. Semiannually during the performance of the 

contract, contracting agencies shall 

require contractors to update the 

information provided about their own 

Labor Laws violations and to obtain the 

required information for covered 

subcontracts. See § 2(b)(i). If a contractor 

reports information regarding Labor 

Laws violations during contract 

performance, or similar information is 

obtained through other sources, a 

contracting officer, in consultation with 

the LCA, shall consider whether action 

is necessary. See § 2(b)(ii). Such action 

may include entering into agreements 

requiring appropriate remedial 

measures and measures to avoid further 

violations, as well as declining to 

exercise an option on a contract, 

contract termination in accordance with 

relevant FAR provisions, or referral to 

the agency suspending and debarring 

official. Id. If information regarding 

Labor Laws violations by a contractor’s 

subcontractor is brought to the attention 

of the contractor, then the contractor 

shall similarly consider whether action 

is necessary. See § 2(b)(iii). 

The Order requires each contracting 

agency to designate a senior agency 

official to be an LCA to provide 

consistent guidance on whether 

contractors’ actions rise to the level of 

a lack of integrity or business ethics. See 

§ 3. As a general matter, LCAs will 

coordinate assistance for contractors 

that seek help in addressing and 

preventing Labor Laws violations. See 

§§ 3(b)–(c). And in consultation with the 

Department and other agencies 

responsible for enforcing the Labor 

Laws, LCAs will help contracting 

officers to: Review information 

regarding violations reported by 

contractors; assess whether reported 

violations are serious, repeated, willful, 

or pervasive; review the contractor’s 

remediation of the violation and any 

other mitigating factors; and determine 

if the violations identified warrant 

remedial measures, such as a labor 

compliance agreement. See § 3(d). For 

purposes of this proposed guidance, a 

‘‘labor compliance agreement’’ is an 

agreement entered into between an 

enforcement agency (defined below) and 

a contractor or subcontractor to address 

appropriate remedial measures, 

compliance assistance, steps to resolve 

issues to increase compliance with labor 

laws, or other related matters. See 

§ 2(a)(ii). 

The Order directs the FAR Council to 

propose such rules and regulations and 

issue such orders as are deemed 

necessary and appropriate to carry out 

the Order. See § 7. Specifically, the FAR 

Council will promulgate regulations for 

contracting agencies and contractors 

(with respect to their subcontractors) to 

apply when determining whether 

certain types of Labor Laws violations 

demonstrate a lack of integrity or 

business ethics. See § 4(a). The 

regulations will: Provide that, subject to 

the determination of the contracting 

agency, ‘‘in most cases a single violation 

of [a Labor Law] may not necessarily 

give rise to a determination of lack of 

responsibility, depending on the nature 

of the violation;’’ ensure appropriate 

consideration is given to any remedial 

measures or mitigating factors, 

including any agreements by contractors 

or other corrective action taken to 

address violations; and ensure that 

contracting officers and LCAs send 

information, as appropriate, to the 

agency suspending and debarring 

official, in accordance with agency 

procedures. Id. And as discussed above, 

the Order directs the Secretary to define 

certain terms used in the Order and to 

develop guidance to assist contracting 

agencies in implementing the Order’s 

requirements. 

The Order also contains two paycheck 

transparency requirements. First, the 

Order requires contracting agencies to 

ensure that, for contracts subject to the 

Order, provisions in solicitations and 

clauses in contracts shall provide that, 

in each pay period, contractors provide 

all individuals performing work under 

the contract for whom they are required 

to maintain wage records under the 

FLSA, DBA, SCA, or equivalent State 

laws, with a document with information 

concerning that individual’s hours 

worked, overtime hours, pay, and any 

additions made to or deductions made 

from pay (i.e., a wage statement). See 

§ 5(a). Contracting agencies shall also 

require that contractors incorporate this 

same requirement into covered 

subcontracts. Id. However, the Order 

instructs that the wage statement 

provided to individuals exempt from 

the overtime compensation 

requirements of the FLSA need not 

include a record of hours worked if the 

contractor or subcontractor informs the 

individuals of their exempt status. Id. 

The Order’s wage statement requirement 

will be deemed satisfied for workers to 

whom the contractor or subcontractor 

provides a wage statement that complies 

with an applicable State or local wage 

statement requirement that the Secretary 

has determined is substantially similar 

to the Order’s wage statement 

requirement. Id. Second, the Order 

provides that if a contractor or 

subcontractor is treating an individual 

performing work under a covered 

contract as an independent contractor, 

and not an employee, it must provide a 

document informing the individual of 

this status. See § 5(b).10

Finally, the Order requires that, in 

developing the guidance and proposing 

to amend the FAR, the Secretary and the 

FAR Council shall minimize, to the 

extent practicable, the burden of 

complying with the Order for federal 

contractors and subcontractors and in 

particular small entities, including 

small businesses, as defined in section 


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11See 48 CFR 1.108(c) (dollar thresholds under 

the FAR). 

12The FAR, 48 CFR 2.101, defines ‘‘commercially 

available off-the-shelf item.’’ 

13 48 CFR 2.101 states: ‘‘Contract means a 

mutually binding legal relationship obligating the 

seller to furnish the supplies or services (including 

construction) and the buyer to pay for them. It 

includes all types of commitments that obligate the 

Government to an expenditure of appropriated 

funds and that, except as otherwise authorized, are 

in writing. In addition to bilateral instruments, 

contracts include (but are not limited to) awards 

and notices of awards; job orders or task letters 

issued under basic ordering agreements; letter 

contracts; orders, such as purchase orders, under 

which the contract becomes effective by written 

acceptance or performance; and bilateral contract 

modifications. Contracts do not include grants and 

cooperative agreements covered by 31 U.S.C. 6301, 

et seq.’’ 

3 of the Small Business Act (15 U.S.C. 

632), and small nonprofit organizations. 

See § 4(e). The intent of the Order is to 

minimize additional compliance 

burdens and to increase economy and 

efficiency in federal contracting by 

helping more contractors and 

subcontractors come into compliance 

with workplace protections, not by 

denying them contracts. Toward that 

end, the Order provides that a single 

Web site will serve as the portal for all 

reporting requirements related to the 

Order and that LCAs and the 

Department will be available for 

consultation with contractors regarding 

the Order’s requirements. See 

§§ 2(a)(vi), 3(c), 4(d). As part of the 

responsibility determination in FAR 9.1, 

Responsible Prospective Contractor, 

contracting officers (and contractors for 

their subcontractors) will take into 

account any remedial actions and other 

mitigating factors, including adherence 

to any agreements with enforcement 

agencies. The Order’s goals are to 

provide contractors and subcontractors 

with additional incentives to come into 

compliance with Labor Laws and to 

help ensure that contracts are awarded 

to responsible entities. This will help 

prevent delays and waste of taxpayer 

money. 

II. Disclosure Requirements 

For all covered procurement contracts 

(defined below), the Order requires 

contracting agencies to include 

provisions in their solicitations 

requiring that the contractor represent, 

to the best of its knowledge and belief, 

whether there have been any 

administrative merits determinations, 

civil judgments, or arbitral awards or 

decisions rendered against it within the 

preceding three years for violations of 

the Labor Laws. Contracting agencies 

shall further require contractors, at or 

before execution of the covered 

procurement contract, to represent that 

they will require each subcontractor 

performing a covered subcontract (also 

defined below) to report whether there 

have been any administrative merits 

determinations, civil judgments, or 

arbitral awards or decisions rendered 

against the subcontractor within the 

preceding three years for violations of 

the Labor Laws. During the performance 

of the covered contract, the Order 

requires contractors to update their 

disclosures semi-annually and obtain 

similarly updated information from 

their subcontractors. 

The Order requires the Department to 

define in guidance the meaning of 

‘‘administrative merits determination,’’ 

‘‘civil judgment,’’ and ‘‘arbitral award or 

decision.’’ This section of the proposed 

guidance defines those terms and 

provides guidance on who must report 

Labor Laws violations under the Order, 

what triggers the reporting obligations, 

and what particular categories of 

information must be reported under the 

Order. 

A. Who Must Make Disclosures Under 

the Order 

The FAR Council’s proposed 

regulations would require any 

contractor that responds to a solicitation 

for a covered procurement contract to 

represent whether it has any Labor Laws 

violations reportable under the Order. 

The FAR Council’s proposed regulations 

would further require prospective 

contractors for whom a contracting 

officer has initiated the responsibility 

determination process, and who have 

represented that they have Labor Laws 

violation(s), to disclose additional 

information about the violation(s). For 

purposes of this proposed guidance and 

coextensive with section 2(a)(i) of the 

Order, a ‘‘covered procurement 

contract’’ is a procurement contract for 

goods and services, including 

construction, where the estimated value 

of the supplies acquired and services 

required exceeds $500,000.11

Additionally, the Order requires 

contractors to require their 

subcontractors performing covered 

subcontracts to disclose Labor Laws 

violations reportable under the Order. 

See § 2(a)(iv). For purposes of this 

proposed guidance and coextensive 

with section 2(a)(iv) of the Order, 

‘‘covered subcontract’’ means any 

contract awarded to a subcontractor that 

would be a covered procurement 

contract except for contracts for 

commercially available off-the-shelf 

items.12 This proposed guidance uses 

‘‘covered contracts’’ to include both 

covered procurement contracts and 

covered subcontracts. 

The Order applies to contracting 

activities by executive agencies. See § 1. 

The term ‘‘executive agency’’ is defined 

under the FAR as ‘‘an executive 

department, a military department, or 

any independent establishment within 

the meaning of 5 U.S.C. 101, 102, and 

104(1), respectively, and any wholly 

owned Government corporation within 

the meaning of 31 U.S.C. 9101.’’ 48 CFR 

2.101. This proposed guidance generally 

uses the term ‘‘contracting agencies’’ to 

refer to executive agencies, as defined in 

the FAR, that are engaged in 

contracting. 

As used in this proposed guidance, 

the term ‘‘contract’’ has the same 

meaning as it has under the FAR, 48 

CFR 2.101.13 Thus, the term ‘‘contract’’ 

means a procurement contract and does 

not include grants and cooperative 

agreements (which are not subject to the 

Order’s requirements). 

In this proposed guidance, references 

to ‘‘contractors’’ and ‘‘subcontractors’’ 

include entities that hold covered 

contracts as well as ‘‘offerors,’’ meaning 

any entity that bids for a covered 

contract. The term ‘‘entity’’ is properly 

understood to include both 

organizations and individuals that apply 

for and receive covered contracts. 

B. What Triggers the Disclosure 

Obligations 

The Order creates disclosure 

requirements for contractors and 

subcontractors performing or bidding on 

covered contracts. Under the Order, 

contractors and subcontractors must 

report administrative merits 

determinations, civil judgments, and 

arbitral awards or decisions that have 

been rendered against them within the 

previous three years for a violation of 

the Labor Laws. 

The relevant three-year period is the 

three-year period preceding the date of 

the offer (i.e., the contract bid or 

proposal). Therefore, administrative 

merits determinations, civil judgments, 

and arbitral awards or decisions 

rendered during that three-year period 

must be reported even if the underlying 

conduct that violated the Labor Laws 

occurred more than three years prior to 

the date of the report. See §§ 2(a)(i), 

2(a)(iv)(A). 

The Order’s reporting requirements 

apply to administrative merits 

determinations, civil judgments, and 

arbitral awards or decisions ‘‘rendered 

against the [offeror or subcontractor] 

within the preceding 3-year period.’’ 

See §§ 2(a)(i), 2(a)(iv)(A). Therefore, it 

requires contractors and subcontractors 

to report administrative merits 

determinations, civil judgments, and 

arbitral awards or decisions that were 


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14Section 18 of the OSH Act encourages States to 

develop and operate their own job safety and health 

programs, and OSHA approves and monitors State 

Plans and provides up to 50 percent of an approved 

plan’s operating costs. OSHA-approved State Plans 

are described and listed in 29 CFR part 1952, and 

further information about such plans can be found 

at https://www.osha.gov/dcsp/osp/index.html. 

15The Occupational Safety and Health Review 

Commission is an independent federal agency that 

provides administrative trial and appellate review 

in contests of OSH Act citations or penalties. 

16For example, contracting agencies may 

investigate violations of the DBA relating to 

contracts that they administer, but that does not 

make them enforcement agencies for purposes of 

the Order. 

issued during the relevant three-year 

period even if they were not performing 

or bidding on a covered contract at the 

time. For example, if the Department’s 

Wage and Hour Division renders an 

administrative merits determination 

finding that an employer failed to pay 

overtime due under the FLSA and the 

employer later (within three years of the 

determination) bids for the first time on 

a covered procurement contract, the 

employer must report the FLSA 

determination even though it was not a 

contractor or bidding on a covered 

contract at the time when it received the 

determination. 

Administrative merits determinations, 

civil judgments, and arbitral awards or 

decisions that must be reported under 

the Order include those issued for 

violations of State laws equivalent to the 

fourteen federal Labor Laws listed in the 

Order. See § 2(a)(i)(O). Although the 

Department will identify—in a second 

guidance to be published in the Federal 

Register at a later date—those 

equivalent State laws that are Labor 

Laws, OSHA-approved State Plans are 

equivalent State laws (and thus Labor 

Laws) for purposes of this proposed 

guidance. This is because the OSH Act 

permits certain States to administer 

OSHA-approved State occupational 

safety and health plans in lieu of federal 

enforcement of the OSH Act.14

Administrative merits determinations or 

civil judgments finding violations under 

an OSHA-approved State Plan are 

therefore subject to the Order’s reporting 

requirements as soon as those 

requirements become effective, even if 

the Secretary has not published final 

guidance identifying other State laws 

that are equivalent to the federal Labor 

Laws. 

1. Defining ‘‘Administrative Merits 

Determination’’ 

Enforcement agencies issue notices, 

findings, and other documents when 

they determine that any of the Labor 

Laws have been violated. For purposes 

of this proposed guidance, 

‘‘enforcement agency’’ means any 

agency that administers the federal 

Labor Laws, such as the Department and 

its agencies, the Occupational Safety 

and Health Review Commission,15 the 

Equal Employment Opportunity 

Commission, and the National Labor 

Relations Board. Enforcement agencies 

do not include other federal agencies 

who, in their capacity as contracting 

agencies, undertake an investigation of 

a violation of the federal Labor Laws.16

For purposes of this proposed guidance, 

‘‘enforcement agency’’ also means those 

State agencies designated to administer 

an OSHA-approved State Plan, but only 

to the extent that the State agency is 

acting in its capacity as administrator of 

such plan. And once the Department’s 

second guidance (to be published at a 

later date) identifying the State laws that 

are equivalent to the federal Labor Laws 

is finalized, ‘‘enforcement agency’’ will 

also include those State agencies that 

enforce those identified equivalent State 

laws. 

For purposes of the Order, the term 

‘‘administrative merits determination’’ 

means any of the following notices or 

findings—whether final or subject to 

appeal or further review—issued by an 

enforcement agency following an 

investigation that indicates that the 

contractor or subcontractor violated any 

provision of the Labor Laws: 

(a) From the Department’s Wage and Hour 

Division: 

• A WH–56 ‘‘Summary of Unpaid Wages’’ 

form; 

• a letter indicating that an investigation 

disclosed a violation of sections six or seven 

of the FLSA or a violation of the FMLA, SCA, 

DBA, or Executive Order 13658; 

• a WH–103 ‘‘Employment of Minors 

Contrary to The Fair Labor Standards Act’’ 

notice; 

• a letter, notice, or other document 

assessing civil monetary penalties; 

• a letter that recites violations concerning 

the payment of special minimum wages to 

workers with disabilities under section 14(c) 

of the FLSA or revokes a certificate that 

authorized the payment of special minimum 

wages; 

• a WH–561 ‘‘Citation and Notification of 

Penalty’’ for violations under the OSH Act’s 

field sanitation or temporary labor camp 

standards; 

• an order of reference filed with an 

administrative law judge. 

(b) from the Department’s Occupational 

Safety and Health Administration (OSHA) or 

any State agency designated to administer an 

OSHA-approved State Plan: 

• A citation; 

• an imminent danger notice; 

• a notice of failure to abate; or 

• any State equivalent; 

(c) from the Department’s Office of Federal 

Contract Compliance Programs: 

• A show cause notice for failure to 

comply with the requirements of Executive 

Order 11246, Section 503 of the 

Rehabilitation Act, the Vietnam Era Veterans’ 

Readjustment Assistance Act of 1972, or the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974; 

(d) from the Equal Employment 

Opportunity Commission (the EEOC): 

• A letter of determination that reasonable 

cause exists to believe that an unlawful 

employment practice has occurred or is 

occurring; or 

• a civil action filed on behalf of the EEOC; 

(e) from the National Labor Relations 

Board: 

• A complaint issued by any Regional 

Director; 

(f) a complaint filed by or on behalf of an 

enforcement agency with a federal or State 

court, an administrative judge, or an 

administrative law judge alleging that the 

contractor or subcontractor violated any 

provision of the Labor Laws; or 

(g) any order or finding from any 

administrative judge, administrative law 

judge, the Department’s Administrative 

Review Board, the Occupational Safety and 

Health Review Commission or State 

equivalent, or the National Labor Relations 

Board that the contractor or subcontractor 

violated any provision of the Labor Laws. 

The above definition provides seven 

categories of documents, notices, and 

findings from enforcement agencies that 

constitute the administrative merits 

determinations that must be reported 

under the Order. The list is an 

exhaustive one, meaning that if a 

document does not fall within one of 

categories (a) through (g) above, the 

Department does not consider it to be an 

‘‘administrative merits determination’’ 

for purposes of the Order. 

In addition, the Department will 

publish at a later date a second 

proposed guidance that identifies an 

eighth category of administrative merits 

determinations: The documents, 

notices, and findings issued by State 

enforcement agencies when they find 

violations of the State laws equivalent to 

the federal Labor Laws. 

Categories (a) through (e) in the 

definition list types of administrative 

merits determinations that are issued by 

specific enforcement agencies. 

Categories (f) and (g) describe types of 

administrative merits determinations 

that are common to multiple 

enforcement agencies. Category (f) is 

necessary because it is possible that an 

enforcement agency will not have 

issued a notice or finding following its 

investigation that falls within categories 

(a) through (e) prior to filing a complaint 

in court. 

The administrative merits 

determinations listed in the definition 

are issued following an investigation by 

the relevant enforcement agency. 

Administrative merits determinations 

are not limited to notices and findings 


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issued following adversarial or 

adjudicative proceedings such as a 

hearing, nor are they limited to notices 

and findings that are final and 

unappealable. Thus, administrative 

merits determinations that must be 

reported under the Order include an 

administrative merits determination that 

the contractor or subcontractor is 

challenging, can still challenge, or is 

otherwise subject to further review. 

However, the Department understands 

that contractors and subcontractors may 

raise good-faith disputes regarding 

administrative merits determinations 

that have been issued to them. As set 

forth below, when contractors and 

subcontractors report administrative 

merits determinations, they may also 

submit any additional information that 

they believe may be helpful in assessing 

the violations at issue (including the 

fact that the determination has been 

challenged). Additionally, contractors 

and subcontractors will have 

opportunities to provide information 

regarding any mitigating factors. 

Certain ‘‘complaints’’ issued by 

enforcement agencies are included in 

the definition of ‘‘administrative merits 

determination.’’ The complaints issued 

by enforcement agencies included in the 

definition are not akin to complaints 

filed by private parties to initiate 

lawsuits in Federal or state courts. Each 

complaint included in the definition 

represents a finding by an enforcement 

agency following a full investigation 

that a Labor Law was violated; in 

contrast, a complaint filed by a private 

party in a Federal or state court 

represents allegations made by that 

plaintiff and not any enforcement 

agency. Moreover, employee complaints 

made to enforcement agencies (such as 

a complaint for failure to pay overtime 

wages filed with the Department’s Wage 

and Hour Division or a charge of 

discrimination filed with the EEOC) are 

not administrative merits 

determinations. 

2. Defining ‘‘Civil Judgment’’ 

For purposes of the Order, the term 

‘‘civil judgment’’ means any judgment 

or order entered by any federal or State 

court in which the court determined 

that the contractor or subcontractor 

violated any provision of the Labor 

Laws, or enjoined or restrained the 

contractor or subcontractor from 

violating any provision of the Labor 

Laws. Civil judgment includes a 

judgment or order that is not final or is 

subject to appeal. 

A civil judgment could be the result 

of an action filed in court by or on 

behalf of an enforcement agency or, for 

those Labor Laws that establish a private 

right of action, by a private party or 

parties. The judgment or order in which 

the court determined that a violation 

occurred may be the result of a jury 

trial, a bench trial, or a motion for 

judgment as a matter of law, such as a 

summary judgment motion. Even a 

decision granting partial summary 

judgment may be a civil judgment if, for 

example, the decision finds a violation 

of the Labor Laws but leaves resolution 

of the amount of damages for later in the 

proceedings. Likewise, a preliminary 

injunction can be a civil judgment if the 

order enjoins or restrains a violation of 

the Labor Laws. Civil judgments include 

consent judgments and default 

judgments to the extent that there is a 

determination in the judgment that any 

of the Labor Laws have been violated, or 

the judgment enjoins or restrains the 

contractor or subcontractor from 

violating any provision of the Labor 

Laws. A private settlement where the 

lawsuit is dismissed by the court 

without any judgment being entered is 

not a civil judgment. 

Civil judgments do not include 

judgments or orders issued by an 

administrative law judge or other 

administrative tribunals, such as those 

identified in the definition of 

administrative merits determination. 

Such judgments and orders may be 

administrative merits determinations. If, 

however, a federal or State court issues 

a judgment or order affirming an 

administrative merits determination, 

then the court’s decision is a civil 

judgment. 

Civil judgments include a judgment or 

order finding that a contractor or 

subcontractor violated any of the Labor 

Laws even if the order or decision is 

subject to further review in the same 

proceeding, is not final, can be 

appealed, or has been appealed. As set 

forth below, when contractors and 

subcontractors report civil judgments, 

they may also submit any additional 

information that they believe may be 

helpful in assessing the violations at 

issue (including the fact that the civil 

judgment has been appealed). 

Additionally, contractors and 

subcontractors will have opportunities 

to provide information regarding any 

mitigating factors. 

3. Defining ‘‘Arbitral Award or 

Decision’’ 

For purposes of the Order, the term 

‘‘arbitral award or decision’’ means any 

award or order by an arbitrator or 

arbitral panel in which the arbitrator or 

arbitral panel determined that the 

contractor or subcontractor violated any 

provision of the Labor Laws, or enjoined 

or restrained the contractor or 

subcontractor from violating any 

provision of the Labor Laws. Arbitral 

award or decision includes an award or 

order that is not final or is subject to 

being confirmed, modified, or vacated 

by a court. 

Arbitral award or decision includes 

an arbitral award or decision regardless 

of whether it is issued by one arbitrator 

or a panel of arbitrators and even if the 

arbitral proceedings were private or 

confidential. 

Arbitral award or decision also 

includes an arbitral award or decision 

finding that a contractor or 

subcontractor violated any of the Labor 

Laws even if the award or decision is 

subject to further review in the same 

proceeding, is not final, or is subject to 

being confirmed, modified, or vacated 

by a court. As set forth below, when 

contractors and subcontractors report 

arbitral awards or decisions, they may 

also submit any additional information 

that they believe may be helpful in 

assessing the violations at issue 

(including the fact that they have sought 

to have the award or decision vacated or 

modified). Additionally, contractors and 

subcontractors will have opportunities 

to provide information regarding any 

mitigating factors. 

4. Successive Administrative Merits 

Determinations, Civil Judgments, and 

Arbitral Awards or Decisions Arising 

From the Same Underlying Violation 

If a contractor or subcontractor 

appeals or challenges an administrative 

merits determination, civil judgment, 

and/or arbitral award or decision, there 

may be successive administrative merits 

determinations, civil judgments, and/or 

arbitral awards or decisions that arise 

from the same underlying violation. For 

example, if a contractor or subcontractor 

receives an OSHA citation and appeals 

that citation, it may receive an order 

from an administrative law judge (ALJ) 

concerning that citation. Similarly, if a 

contractor or subcontractor receives an 

adverse decision from the Department’s 

Administrative Review Board (ARB) and 

challenges the decision in federal court, 

it may receive a court judgment 

concerning that decision. 

If a contractor or subcontractor 

receives, during the preceding threeyear period, successive administrative 

merits determinations, civil judgments, 

and/or arbitral awards or decisions 

arising from the same underlying 

violation, it need not report the 

violation if, at the time of reporting, the 

determination that there was a violation 

of a Labor Law has been reversed or 

vacated in its entirety. If the 

determination that there was a violation 

of a Labor Law is later reinstated on 


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17Specifically, the contractor should provide the 

inspection number for OSH Act citations, the case 

number for National Labor Relations Board 

proceedings, the charge number for EEOC 

proceedings, the investigation or case number if 

known for Wage and Hour Division investigations, 

the case number for investigations by the Office of 

Federal Contract Compliance Programs, the case 

number for determinations by administrative 

tribunals, and the case number for court 

proceedings. 

18Pursuant to FAR 9.105–1(a), contracting 

officers have a duty to obtain such additional 

information as may be necessary to be satisfied that 

a prospective contractor has a satisfactory record of 

integrity and business ethics. 

appeal or in further proceedings, then 

the subsequent administrative merits 

determination, civil judgment, or 

arbitral award or decision reinstating 

the finding of a violation is an 

administrative merits determination, 

civil judgment, or arbitral award or 

decision within the meaning of this 

guidance and the Order and therefore 

must be reported. Thus, in the above 

examples, if the ALJ reverses the OSHA 

citation, or if the federal court vacates 

the ARB’s adverse decision, the 

contractor or subcontractor need not 

report the violation. If the OSHA 

violation is later reinstated by the full 

Occupational Health and Safety Review 

Commission (OSHRC), or if the federal 

court’s decision vacating the ARB’s 

adverse decision is reversed by a court 

of appeals, these subsequent decisions 

must be reported. 

If a subsequent decision concerning 

the same underlying violation upholds 

or does not completely reverse or vacate 

the finding of violation, the contractor 

or subcontractor should report only the 

administrative merits determination, 

civil judgment, or arbitral award or 

decision that is the most recent at the 

time of reporting. Thus, in the first 

example above, if the ALJ affirms the 

OSHA citation in whole or in part, the 

contractor or subcontractor must report 

the more recent ALJ order but need not 

report the original citation. In the 

second example above, if the federal 

court affirms the ARB’s decision, or 

modifies it but does not vacate it in its 

entirety, the contractor or subcontractor 

should report the more recent court 

order and need not report the original 

ARB decision. 

If, however, the contractor or 

subcontractor appeals or challenges 

only part of an administrative merits 

determination, civil judgment, or 

arbitral award or decision, it must 

continue to report the original 

administrative merits determination, 

civil judgment, or arbitral award or 

decision even if a successive 

administrative merits determination, 

civil judgment, or arbitral award or 

decision has been issued. For example, 

if, within the preceding three-year 

period, a district court finds a contractor 

or subcontractor liable for Title VII and 

FLSA violations, and the contractor or 

subcontractor appeals only the Title VII 

judgment to the court of appeals, it must 

continue to report the district court 

decision (containing the finding of an 

FLSA violation) even if a subsequent 

court of appeals decision is rendered 

concerning the Title VII violation. 

If the contractor or subcontractor 

reported an administrative merits 

determination, civil judgment, or 

arbitral award or decision before being 

awarded a covered contract, and a 

successive administrative merits 

determination, civil judgment, or 

arbitral award or decision arising from 

the same underlying violation is 

rendered during the performance of the 

contract and affirms that the contractor 

or subcontractor committed the 

violation, the successive administrative 

merits determination, civil judgment, or 

arbitral award or decision is an 

administrative merits determination, 

civil judgment, or arbitral award or 

decision within the meaning of this 

guidance and the Order. Therefore, the 

contractor or subcontractor must report 

the most recent determination, 

judgment, award or decision when it 

updates its disclosures at semi-annual 

intervals during performance of the 

covered contract. 

C. What Information Must Be Disclosed 

The following sections provide 

guidance on what information must be 

reported at different stages of the 

contracting process. When finalized, the 

FAR Council regulation will set forth 

the specific requirements for what must 

be reported at each stage, and how such 

information is to be reported. 

1. Initial Representation 

When a contractor bids on a 

solicitation for a covered procurement 

contract, the Order requires it to report 

to the contracting agency issuing the 

solicitation whether any administrative 

merits determinations, civil judgments, 

or arbitral awards or decisions have 

been rendered against it within the 

preceding three-year period. See § 2(a). 

At this stage, the contractor will 

represent to the best of its knowledge 

and belief whether it has or has not had 

such violations, without providing 

further information. 

2. Pre-Award Reporting 

If a contractor reaches the stage in the 

process at which a responsibility 

determination is made, and that 

contractor responded affirmatively at 

the initial representation stage, the 

contracting officer will require 

additional information about that 

contractor’s Labor Laws violation(s). For 

each administrative merits 

determination, civil judgment, or 

arbitral award or decision that must be 

reported, the contractor will provide: 

• The Labor Law that was violated; 

• the case number, inspection 

number, charge number, docket number, 

or other unique identification 

number; 17

• the date that the determination, 

judgment, award, or decision was 

rendered; and 

• the name of the court, arbitrator(s), 

agency, board, or commission that 

rendered it.18

The contractor may also provide such 

additional information as the contractor 

deems necessary to demonstrate its 

responsibility, such as mitigating 

circumstances, remedial measures (to 

include labor compliance agreements), 

and other steps taken to achieve 

compliance with the Labor Laws. 

Mitigating factors are discussed below. 

3. Post-Award Reporting 

The Order requires contractors to 

update the information reported to 

contracting agencies semi-annually 

during performance of the covered 

procurement contract. See § 2(b). These 

periodic updates should include any 

new administrative merits 

determinations, civil judgments, and 

arbitral awards or decisions rendered 

since the last report and updates to 

previously reported or provided 

information. As noted above in section 

II.B.4, contractors must report new 

administrative merits determinations, 

civil judgments, and arbitral awards or 

decisions even if they arise from a 

violation of the Labor Laws that was 

already reported. For example, if a 

contractor initially reported a federal 

district court judgment finding that it 

violated the FLSA, it must still report as 

part of the periodic updates any federal 

court of appeals decision affirming that 

judgment. Through the ongoing postaward reporting, contractors may also 

submit updated information reflecting 

the fact that a given administrative 

merits determination, civil judgment, or 

arbitral award or decision has been 

vacated, reversed, or otherwise 

modified. And contractors may also 

report mitigating factors and any other 

information that they believe may be 

helpful in assessing the violations at 

issue. 


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4. Reporting by Subcontractors 

The Order provides that contractors 

will require their subcontractors 

performing covered subcontracts to 

report administrative merits 

determinations, civil judgments, or 

arbitral awards or decisions rendered 

against them within the preceding threeyear period for violations of any of the 

Labor Laws. See §§ 2(a)(iv)–(v). The 

Order further provides that contractors 

must require their subcontractors to 

make such reports to the contractor 

prior to being awarded a covered 

subcontract and semi-annually during 

performance of a covered subcontract. 

Id. The Order requires contractors to 

make the same assessments regarding 

subcontractors and their violations of 

the Labor Laws as contracting agencies 

must make of contractors. Id. This 

builds on contractors’ existing 

obligation to determine the 

responsibility of their subcontractors. 

To facilitate these assessments, given 

that contractors may have more 

difficulty than contracting officers and 

LCAs in obtaining copies of 

administrative merits determinations, 

civil judgments, and arbitral awards or 

decisions, the FAR Council’s proposed 

regulations would require contractors to 

include provisions in subcontracts 

requiring that subcontractors who report 

violations of Labor Laws—and for 

which a responsibility determination 

has been initiated—provide a copy of 

the relevant administrative merits 

determination(s), civil judgment(s), and 

arbitral award(s) or decision(s), as well 

as any notice from the Department 

advising that the subcontractor either 

has not entered into a labor compliance 

agreement within a reasonable period of 

time or is not meeting the terms of an 

existing agreement. The preamble to the 

FAR Council’s proposed regulations 

indicates that the subcontractor 

reporting requirement may be phased in 

through a delayed implementation to 

allow the contracting community to 

become familiar with the Order’s 

requirements and procedures. To this 

end, contractors are encouraged to 

contact the Department for assistance in 

obtaining information necessary to 

assess any Labor Laws violations 

reported by their subcontractors. The 

Department will set up a structure 

within the Department to be available to 

consult with contractors in carrying out 

these responsibilities, as well as provide 

guidance as needed to contractors and 

subcontractors in compliance with the 

requirements of the Order. The 

Department will also be available to 

assist subcontractors directly in carrying 

out their responsibilities under the 

Order. 

The above paragraphs describe the 

duties of contractors and subcontractors 

as set forth in the text of the proposed 

FAR rule. However, the Department 

recognizes that the FAR Council is 

considering allowing contractors to 

direct their subcontractors to report 

violations to the Department, which 

would then assess the violations. 

III. Weighing Violations of the Labor 

Laws 

The Order directs the Department to 

develop guidance ‘‘to assist agencies in 

determining whether administrative 

merits determinations, arbitral awards 

or decisions, or civil judgments were 

issued for serious, repeated, willful, or 

pervasive violations’’ of the Labor Laws 

for purposes of implementing the final 

rule issued by the FAR Council. See 

§ 4(b)(i). The Order specifies that the 

Department’s guidance should 

‘‘incorporate existing statutory 

standards for assessing whether a 

violation is serious, repeated, or willful’’ 

where they are available. Id. The Order 

also provides some guidelines for 

developing standards where none are 

provided by statute. Id. 

This section of the proposed guidance 

defines the terms ‘‘serious,’’ ‘‘repeated,’’ 

‘‘willful,’’ and ‘‘pervasive’’ and provides 

guidance on their meanings and how 

violations of the Labor Laws should be 

weighed. While contracting officers and 

LCAs can seek additional information 

from the Department to provide context, 

in utilizing this guidance to determine 

whether violations are serious, repeated, 

willful, or pervasive, contracting officers 

should rely on the information 

contained in the administrative merits 

determinations, arbitral awards or 

decisions, and civil judgments. 

All violations of federal labor laws are 

serious, but in this context the 

Department has, pursuant to the Order, 

identified certain violations as 

‘‘serious,’’ ‘‘willful,’’ ‘‘repeated,’’ and 

‘‘pervasive.’’ This subset of all labor 

violations represents the violations that 

are most concerning and bear on an 

assessment of a contractor’s or 

subcontractor’s integrity and business 

ethics. The Department has purposely 

excluded from consideration violations 

that could be characterized as 

inadvertent or minimally impactful. In 

most cases, even for violations subject to 

disclosure and consideration under the 

Order, a single violation of one of the 

Labor Laws will not give rise to a 

determination of lack of responsibility. 

In contrast, as explained more fully 

below, pervasive violations and 

violations of particular gravity, among 

others, will in most cases result in the 

need for a labor compliance agreement. 

See section III.E below. 

Each contractor’s disclosed violations 

of Labor Laws will be assessed on a 

case-by-case basis in light of the totality 

of the circumstances, including the 

severity of the violation or violations, 

the size of the contractor, and any 

mitigating factors. The extent to which 

a contractor has remediated violations 

of Labor Laws, including agreements 

entered into by contractors with 

enforcement agencies, will be given 

particular weight in this regard. In fact, 

the vast majority of administrative 

merits determinations (in some 

enforcement agencies, as much as 90 

percent) result in settlement agreements 

between employers and enforcement 

agencies. 

The Department will work with LCAs 

across contracting agencies to help 

ensure efficient, accurate, and 

consistent decisions across the 

government. 

A. Serious Violations 

Of the federal Labor Laws, only the 

OSH Act provides a statutory standard 

for what constitutes a ‘‘serious’’ 

violation, and this standard also applies 

to OSHA-approved State Plans. The 

other federal Labor Laws do not have 

statutory standards for what constitutes 

a serious violation. According to the 

Order, where no statutory standards 

exist, the Department’s guidance for 

‘‘serious’’ violations must take into 

account ‘‘the number of employees 

affected, the degree of risk posed or 

actual harm done by the violation to the 

health, safety, or well-being of a worker, 

the amount of damages incurred or fines 

or penalties assessed with regard to the 

violation, and other considerations as 

the Secretary finds appropriate.’’ See 

§ 4(b)(i)(B)(1). 

Accordingly, a violation is ‘‘serious’’ 

for purposes of the Order if it involves 

at least one of the following: 

• An OSH Act or OSHA-approved State 

Plan citation was designated as serious, there 

was a notice of failure to abate an OSH Act 

violation, or an imminent danger notice was 

issued under the OSH Act or an OSHAapproved State Plan; 

• The affected workers comprised 25% or 

more of the workforce at the worksite; 

• Fines and penalties of at least $5,000 

were assessed or back wages of at least 

$10,000 were due or injunctive relief was 

imposed by an enforcement agency or a 

court; 

• The contractor’s or subcontractor’s 

conduct violated MSPA or the child labor 

provisions of the FLSA and caused or 

contributed to the death or serious injury of 

one or more workers; 


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• Employment of a minor who was too 

young to be legally employed or in violation 

of a Hazardous Occupations Order; 

• The contractor or subcontractor engaged 

in an adverse employment action (including 

discharge, refusal to hire, suspension, 

demotion, or threat) or is responsible for 

unlawful harassment against one or more 

workers for exercising any right protected by 

any of the Labor Laws; 

• The findings of the relevant enforcement 

agency, court, arbitrator, or arbitral panel 

support a conclusion that the contractor or 

subcontractor engaged in a pattern or practice 

of discrimination or systemic discrimination; 

• The findings of the relevant enforcement 

agency, court, arbitrator, or arbitral panel 

support a conclusion that the contractor or 

subcontractor interfered with the 

enforcement agency’s investigation; or 

• The contractor or subcontractor breached 

the material terms of any agreement or 

settlement entered into with an enforcement 

agency, or violated any court order, any 

administrative order by an enforcement 

agency, or any arbitral award. 

The definition provides an exhaustive 

list of the categories of Labor Laws 

violations that may be serious under the 

Order. 

1. OSH Act 

Section 17(k) of the OSH Act, 29 

U.S.C. 666(k), defines a violation as 

serious, in relevant part, ‘‘if there is a 

substantial probability that [the hazard 

created by the violation could result in] 

death or serious physical harm . . . 

unless the employer did not, and could 

not with the exercise of reasonable 

diligence know’’ of the existence of the 

violation. In other words, a ‘‘violation 

may be determined to be serious where, 

although the accident itself is merely 

possible * * *, there is a substantial 

probability of serious injury if it does 

occur.’’ East Texas Motor Freight, Inc. v. 

Occupational Safety and Health Review 

Comm’n, 671 F.2d 845, 849 (5th Cir. 

1982) (internal quotes and citations 

omitted). 

In light of this clear statutory 

definition, a violation of the OSH Act is 

serious if the contractor or subcontractor 

received a citation for a violation 

designated as ‘‘serious’’ under the OSH 

Act or an OSHA-approved State Plan, or 

an imminent danger notice under the 

OSH Act or an OSHA-approved State 

Plan. Imminent danger notices are 

issued only when ‘‘a danger exists 

which could reasonably be expected to 

cause death or serious physical harm 

immediately or before the imminence of 

such danger can be eliminated through 

the enforcement procedures otherwise 

provided by [the OSH Act].’’ 29 U.S.C. 

662(a). Because such notices are issued 

only for violations that imminently 

threaten to cause death or serious 

physical harm, imminent danger notices 

are by definition issued only for serious 

violations of the OSH Act, and thus 

constitute serious violations under the 

Order. 

The OSH Act separately prohibits 

retaliation against workers for exercising 

any right under the Act. 29 U.S.C. 

660(c). As with retaliation under other 

Labor Laws, an OSH Act whistleblower 

violation will be a serious violation 

where the contractor or subcontractor 

engaged in an adverse employment 

action (including discharge, refusal to 

hire, suspension, demotion, or threat). 

Similarly, a contractor or subcontractor 

that has interfered with an OSHA 

inspection or investigation will be 

deemed to have committed a serious 

violation, as will a contractor or 

subcontractor that has breached the 

material terms of any OSHA settlement 

agreement, violated any court order 

under the OSH Act, or received a notice 

that it has failed to abate any cited 

OSHA violation. 

2. 25% of the Workforce Affected 

Consistent with the Order’s directive 

to consider the number of employees 

affected, a violation is serious when the 

workers affected by the violation 

comprised 25% or more of the 

workforce at the worksite. The 

Department believes that: using a 

percentage of the workforce instead of 

an absolute number of workers is a more 

useful way of considering the effects of 

a violation, given that employers of 

various sizes will have disclosure 

obligations under the Order; 25% 

represents a significant percentage of 

workers at a particular site, and as such, 

that the underlying violation is a serious 

one; and 25% strikes an appropriate 

balance by effectively excluding 

individualized or localized violations 

from this category of ‘‘serious’’ while 

capturing more widespread violations. 

For purposes of this 25% threshold, 

‘‘workforce’’ means all individuals 

employed by the contractor or 

subcontractor. It does not include 

workers of another entity, unless the 

underlying violation of the Labor Laws 

includes a finding that the contractor or 

subcontractor is a joint employer of the 

workers that the other entity employs at 

the worksite. 

For purposes of this 25% threshold, 

‘‘worksite’’ means the physical location 

or group of locations where the workers 

affected by the violations work and 

where the contractor or subcontractor 

conducts its business. For example, if 

the contractor or subcontractor conducts 

its business at a single building, or a 

single office within an office building, 

that building or office will comprise the 

worksite. However, if the contractor or 

subcontractor conducts business 

activities in several offices in one 

building, or in several buildings in a 

campus or industrial park, the worksite 

consists of all of the offices or buildings 

in which the business is conducted. On 

the other hand, if a contractor or 

subcontractor has two office buildings 

in different parts of the same city, and 

a violation affects workers in one 

building, the worksite is the one 

building where the violation took place. 

For violations that affect workers with 

no fixed worksite, such as construction 

workers, transportation workers, and 

workers who perform services at various 

customers’ locations, the worksite is the 

site to which they are assigned as their 

home base, from which their work is 

assigned, or to which they report. 

For purposes of this 25% threshold, 

‘‘affected workers’’ means the workers 

who were individually impacted by the 

violation. For example, affected workers 

include workers who were not paid 

wages due, were denied leave or 

benefits, were denied a job, a 

promotion, or other benefits due to 

discrimination, or were harmed by an 

unlawful policy. 

The Department specifically seeks 

comments on this category of serious 

violations. 

3. Fines, Penalties, Back Wages, and 

Injunctive Relief 

Consistent with the Order’s directive 

to take into account ‘‘the amount of 

damages incurred or fines or penalties 

assessed,’’ a violation is serious if it 

resulted in $5,000 or more in fines and 

penalties, or $10,000 or more in back 

wages. Such amounts, in the 

Department’s view, reflect a violation of 

sufficient gravity to be deemed serious. 

Administrative merits determinations 

finding violations of the laws enforced 

by the Department’s Wage and Hour 

Division, for example, may be more 

likely to implicate these thresholds than 

those issued by other enforcement 

agencies. According to recent 

enforcement data from the Wage and 

Hour Division, these thresholds will 

capture only a minority of the violations 

of the Labor Laws enforced by Wage and 

Hour, and a smaller minority of the 

cases investigated by it under those 

laws. According to recent data, Wage 

and Hour assessed penalties in only a 

small minority of the cases in which it 

made a finding; in the small number of 

cases in which penalties were assessed, 

they amounted to $5,000 or more only 

approximately one-fourth of the time. 

Similarly, back wages were due in less 

than half of the cases in which Wage 

and Hour made a finding, and in cases 

in which back wages were due, they 


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19Unlike liquidated damages under the FLSA, 

liquidated damages under the ADEA are punitive in 

nature, as they are expressly tied to willful 

violations. See 29 U.S.C. 626(b). 

would have passed the proposed 

threshold of $10,000 only about onethird of the time. The Department 

specifically seeks comments on whether 

the thresholds for fines and penalties 

and for back wages are set at the 

appropriate levels. 

Examples of ‘‘fines and penalties’’ 

include civil monetary penalties 

assessed by the Department under 

MSPA or under the minimum wage, 

overtime, and child labor provisions of 

the FLSA. Fines and penalties do not 

include back wages, compensatory 

damages, liquidated damages under the 

FLSA, or statutory damages under 

MSPA. However, liquidated damages 

under the ADEA and punitive damages 

are included in fines and penalties for 

purposes of this threshold.19 For 

purposes of determining whether the 

$10,000 back wages threshold is met, 

compensatory damages, liquidated 

damages under the FLSA, and statutory 

damages under MSPA should be 

included as back wages. 

The threshold amounts for fines and 

penalties are measured by the amount 

‘‘assessed.’’ If an administrative merits 

determination, for example, assesses 

$6,000 in civil monetary penalties 

against a contractor or subcontractor but 

later that amount is reduced to $4,000 

in settlement negotiations or only 

$4,000 is collected, the underlying 

violation is serious based on the 

assessed amount. The Department 

believes that the amount assessed is a 

better indication of seriousness because 

civil monetary penalties may be reduced 

for reasons unrelated to the seriousness 

of the violation. If the amount assessed 

was later reduced, the contractor or 

subcontractor should provide that 

information as a possible mitigating 

factor. 

When considering whether these 

thresholds are met, the total fines and 

penalties or the total back wages 

resulting from the Labor Laws violation 

should be considered. In cases where 

multiple provisions of a Labor Law have 

been violated, the fines and penalties 

assessed or the back wages due should 

not be parsed and separately attributed 

to each provision violated. For example, 

if the Department’s FLSA investigation 

discloses violations of the FLSA’s 

minimum wage and overtime provisions 

and back wages are due for both 

violations, the total back wages due 

determines whether the $10,000 

threshold is met. Likewise, if an 

investigation discloses three violations 

of the same MSPA provision or 

violations of three different MSPA 

provisions and each violation results in 

assessed civil monetary penalties of 

$2,000, the MSPA violation is serious 

because the assessed penalties total 

$6,000. 

A violation is also serious if 

injunctive relief was imposed by an 

enforcement agency, a court, or an 

arbitrator or arbitral panel. Injunctive 

relief is an order from an enforcement 

agency or court either to take a certain 

action or to refrain from taking a certain 

action. For example, an order to 

reinstate a wrongfully terminated 

worker, to modify discriminatory hiring 

practices, to make a location accessible 

to individuals with disabilities, to 

reinstate workers who are attempting to 

organize a union, or to refrain from 

intimidating workers during an 

enforcement agency’s investigation 

would constitute injunctive relief. 

4. MSPA or Child Labor Violations That 

Cause or Contribute to Death or Serious 

Injury 

Violations of the health and safety 

provisions of MSPA and the child labor 

provisions of the FLSA may have 

serious health and safety implications. 

In the most serious cases, violations of 

these statutes may result in death or 

serious injury to one or more workers. 

Consistent with the Order’s directive to 

consider ‘‘the degree of risk posed or 

actual harm done by the violation to 

health, safety, or well-being of a 

worker,’’ MSPA or child labor violations 

that cause or contribute to the death or 

serious injury of one or more workers 

are serious under the Order. For these 

purposes, serious injury has the same 

meaning as in the FLSA’s child labor 

provisions as administered by the 

Department’s Wage and Hour Division. 

5. Employment of Minors Who Are Too 

Young To Be Legally Employed or in 

Violation of a Hazardous Occupations 

Order 

Consistent with the Order’s directive 

to consider ‘‘the degree of risk posed or 

actual harm done by the violation to 

health, safety, or well-being of a 

worker,’’ any violation of the FLSA’s 

child labor provisions where the minor 

is too young to be legally employed or 

is employed in violation of any of the 

Secretary’s Hazardous Occupations 

Orders is a serious violation. Such 

violations do not include situations 

where minors are permitted to perform 

the work at issue but who perform the 

work outside the hours permitted by 

law. Rather, it refers to minors who, by 

virtue of their age, are legally prohibited 

from being employed or are not 

permitted to be employed to perform the 

work at issue. Thus, for example, the 

employment of any minor under the age 

of 18 to perform a hazardous nonagricultural job, any minor under the 

age of 16 to perform a hazardous farm 

job, or any minor under the age of 14 to 

perform non-farm work where he or she 

does not meet a statutory exception 

otherwise permitting the work would be 

a serious violation. This reflects the 

particularly serious dangers that can 

result from the prohibited employment 

of underage minors. Conversely, the 

employment of, for example, a 14 or 15 

year-old minor in excess of three hours 

outside school hours on a school day in 

a non-hazardous, non-agricultural job in 

which the child is otherwise permitted 

to work would not be a serious violation 

for purposes of the Order, even though 

the work violates the FLSA’s child labor 

provisions. 

6. Adverse Employment Actions or 

Unlawful Harassment for Exercising 

Rights Under Labor Laws 

Consistent with the Order’s directive 

to consider ‘‘the degree of risk posed or 

actual harm done by the violation to 

health, safety, or well-being of a 

worker,’’ a violation involving an 

adverse employment action or unlawful 

harassment against one or more workers 

for exercising any right protected by the 

Labor Laws is a serious violation. For 

these purposes, adverse employment 

actions include discharge, refusal to 

hire, suspension, demotion, or threats. 

Examples include disciplining workers 

for attempting to organize a union, 

demoting workers for testifying in an 

investigation, lawsuit, or proceeding 

involving one of the Labor Laws, firing 

or demoting workers who take leave 

under the FMLA, and threatening 

workers with adverse consequences— 

such as termination or referral to 

immigration or criminal authorities—for 

making a complaint about potential 

violations of Labor Laws. These are 

serious violations because they both 

reflect a disregard by an employer for its 

obligations under the Labor Laws and 

undermine the Labor Laws by making 

workers reluctant to exercise their rights 

for fear of retaliation. 

7. Pattern or Practice of Discrimination 

or Systemic Discrimination 

Consistent with the Order’s directive 

to consider ‘‘the degree of risk posed or 

actual harm done by the violation to 

health, safety, or well-being of a 

worker,’’ a Labor Laws violation is 

serious if the findings of the relevant 

enforcement agency, court, arbitrator, or 

arbitral panel support a conclusion that 

the contractor or subcontractor engaged 


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in a pattern or practice of discrimination 

or systemic discrimination. A pattern or 

practice of discrimination involves 

intentional discrimination against a 

protected group of employees, rather 

than discrimination that occurs in an 

isolated fashion. Systemic 

discrimination involves a pattern or 

practice, policy, or class case where the 

discrimination has a broad impact on an 

industry, profession, company or 

geographic area. Examples include 

policies and practices that effectuate 

discriminatory hiring barriers; 

restrictions on access to higher level 

jobs on the basis of race, gender, gender 

identity, sexual orientation, national 

origin, or other protected characteristics; 

unlawful pre-employment inquiries 

regarding disabilities; and 

discriminatory placement or 

assignments that are made to comply 

with customer preferences. Systemic 

discrimination also includes policies 

and practices that are seemingly neutral 

but may cause a disparate impact on 

protected groups. Examples include preemployment tests used for selection 

purposes; height, weight or lifting 

requirements or restrictions; 

compensation practices and policies; 

and performance evaluation policies 

and practices. 

8. Interference With Investigations 

Violations of the Labor Laws in which 

the findings of the relevant enforcement 

agency, court, arbitrator, or arbitral 

panel support a conclusion that the 

contractor or subcontractor engaged in 

interference with the enforcement 

agency’s investigation also are serious 

under the Order. Interference can take a 

number of forms, such as denial of 

access by a contractor or subcontractor 

to an enforcement agency to conduct an 

on-site investigation, evaluation, or 

review; refusal to submit required 

documents to an enforcement agency or 

comply with its request for information; 

threats to workers who speak to 

enforcement agency investigators; 

falsification or destruction of records; 

lying or making misrepresentations to 

investigators; and threatening workers 

with termination or referral to 

immigration or criminal authorities if 

they do not return back wages received 

as part of an investigation. Like 

retaliation, interference with 

investigations is intentional conduct 

that frustrates the enforcement of the 

Labor Laws and therefore, in the 

Department’s view, is a serious 

violation. 

9. Material Breaches and Violations of 

Settlements, Agreements, or Orders 

Violations of the Labor Laws 

involving a breach of the material terms 

of any agreement or settlement, or a 

violation of a court or administrative 

order or arbitral award, are serious 

under the Order. Such violations are 

serious because an employer that is a 

government contractor or subcontractor 

is expected to comply with orders by a 

court or administrative agency and to 

adhere to the terms of any agreements 

or settlements into which it enters. A 

contractor’s or subcontractor’s failure to 

do so may indicate that it will similarly 

disregard its contractual obligations to, 

or agreements with, a contracting 

agency (or a contractor in case of a 

subcontractor), which could result in 

delays, increased costs, and other 

adverse consequences. A contractor or 

subcontractor will not, however, be 

found to have committed a serious 

violation if the agreement, settlement, 

award, or administrative order in 

question has been stayed pending an 

appeal or other further proceeding. 

10. Table of Examples 

For a table containing selected 

examples of serious violations, see 

Appendix A. 

B. Willful Violations 

The Order provides that the standard 

for willful should ‘‘incorporate existing 

statutory standards’’ to the extent such 

standards exist. See § 4(b)(i)(A). The 

Order further provides that, where no 

statutory standards exist, the standard 

for willful should take into account 

‘‘whether the entity knew of, showed 

reckless disregard for, or acted with 

plain indifference to the matter of 

whether its conduct was prohibited by 

the requirements of the [Labor Laws].’’ 

See § 4(b)(i)(B)(3). A violation is 

‘‘willful’’ under the Order if: 

• For purposes of a citation issued 

pursuant to the OSH Act or an OSHAapproved State Plan, the citation at issue was 

designated as willful or any equivalent State 

designation (i.e., ‘‘knowing’’), and the 

designation was not subsequently vacated; 

• For purposes of the FLSA (including the 

Equal Pay Act), the administrative merits 

determination sought or assessed back wages 

for greater than two years or sought or 

assessed civil monetary penalties for a willful 

violation, or there was a civil judgment or 

arbitral award or decision finding the 

contractor or subcontractor liable for back 

wages for greater than two years or affirming 

the assessment of civil monetary penalties for 

a willful violation; 

• For purposes of the ADEA, the 

enforcement agency, court, arbitrator, or 

arbitral panel assessed or awarded liquidated 

damages; 

• For purposes of Title VII or the ADA, the 

enforcement agency, court, arbitrator, or 

arbitral panel assessed or awarded punitive 

damages for a violation where the contractor 

or subcontractor engaged in a discriminatory 

practice with malice or reckless indifference 

to the federally protected rights of an 

aggrieved individual; or 

• For purposes of any of the other Labor 

Laws, the findings of the relevant 

enforcement agency, court, arbitrator, or 

arbitral panel support a conclusion that the 

contractor or subcontractor knew that its 

conduct was prohibited by any of the Labor 

Laws or showed reckless disregard for, or 

acted with plain indifference to, whether its 

conduct was prohibited by one or more 

requirements of the Labor Laws. 

1. The OSH Act, the FLSA, and the 

ADEA 

The term ‘‘willful’’ has wellestablished meanings under the OSH 

Act, the FLSA, and the ADEA. These 

meanings are consistent with the 

standard provided in the Order. 

Violations of the OSH Act, the FLSA, 

and the ADEA are willful under the 

Order if they fit these well-established 

meanings. 

Under the OSH Act, a violation is 

willful where an employer has 

demonstrated either an intentional 

disregard for the requirements of the 

OSH Act or a plain indifference to its 

requirements. See A.E. Staley Mfg. Co. 

v. Sec’y of Labor, 295 F.3d 1341, 1351– 

52 (D.C. Cir. 2002). For example, if an 

employer knows that specific steps must 

be taken to address a hazard, but 

substitutes its own judgment for the 

requirements of the legal standard, the 

violation is willful. Under the OSH Act 

or an OSHA-approved State Plan, if a 

violation was designated as willful and 

that designation has not been 

subsequently vacated, the violation will 

be willful for purposes of the Order. 

Some States may use a different term 

(i.e., ‘‘knowing’’) that means the same 

thing. 

Similarly, under the FLSA, a violation 

is willful where the employer knew that 

its conduct was prohibited by the FLSA 

or showed reckless disregard for the 

FLSA’s requirements. See 29 CFR 

578.3(c)(1); McLaughlin v. Richland 

Shoe Co., 486 U.S. 128, 133 (1988). For 

example, an employer that requires 

workers to ‘‘clock out’’ after 40 hours in 

a workweek and then continue working 

‘‘off the clock’’ or pays workers for 40 

hours by check and then pays them in 

cash at a straight-time rate for hours 

worked over 40 commits a willful 

violation of the FLSA’s overtime 

requirements. These actions show 

knowledge of the FLSA’s requirements 

to pay time-and-a-half for hours worked 

over 40 and an attempt to evade that 

requirement by concealing records of 


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20Civil monetary penalties may be assessed under 

the FLSA for violations that are either willful or 

repeated. Only civil monetary penalties involving 

willful violations will constitute willful violations 

under the Order. 

21Nothing in this guidance is intended to affect 

the terminology or operation of FAR Part 22.4. 

the workers’ actual hours worked. 

Under the FLSA, because willful 

violations are grounds for assessing back 

wages for greater than two years or civil 

monetary penalties, these measures are 

understood to reflect a finding of 

willfulness and therefore will be 

considered indicative of willfulness 

under the Order.20

Likewise, under the ADEA, a 

violation is willful when the employer 

knew or showed reckless disregard for 

the matter of whether its conduct was 

prohibited by the ADEA. See Trans 

World Airlines v. Thurston, 469 U.S. 

111, 126 (1985). Willful violations are 

required for liquidated damages to be 

assessed or awarded under the ADEA. 

See 29 U.S.C. 626(b). Accordingly, any 

violation of the ADEA in which the 

enforcement agency, court, arbitrator, or 

arbitral panel assessed or awarded 

liquidated damages is understood to 

reflect a finding of willfulness and 

therefore will be considered indicative 

of a willful violation under the Order. 

2. Title VII and the ADA 

Violations of Title VII or the ADA are 

‘‘willful’’ under the Order if the 

enforcement agency, court, arbitrator, or 

arbitral panel assessed or awarded 

punitive damages for a violation where 

the contractor or subcontractor engaged 

in a discriminatory practice with malice 

or reckless indifference to the federally 

protected rights of an aggrieved 

individual. Punitive damages are 

appropriate in cases under Title VII or 

the ADA where the contractor or 

subcontractor engaged in intentional 

discrimination with ‘‘malice or reckless 

indifference to the federally protected 

rights of an aggrieved individual.’’ 42 

U.S.C. 1981a. This means that a 

managerial agent of the contractor or 

subcontractor, acting within the scope 

of employment, made a decision that 

was in the face of a perceived risk of 

violating federal law, and the contractor 

or subcontractor cannot prove that the 

manager’s action was contrary to its 

good faith efforts to comply with federal 

law. See Kolstad v. American Dental 

Ass’n, 527 U.S. 526, 536, 545 (1999). For 

example, if a manager received a 

complaint of sexual harassment but 

failed to report it or investigate it, and 

the employer’s anti-harassment policy 

was ineffective in protecting the 

employees’ rights, or the employer did 

not engage in good faith efforts to 

educate its managerial staff about sexual 

harassment, then the violation would 

warrant punitive damages and qualify as 

‘‘willful’’ under the Order, See, e.g., 

EEOC v. Mgmt. Hospitality of Racine, 

Inc., 666 F.3d 422, 438–39 (7th Cir. 

2012). 

3. Other Labor Laws 

For violations of Labor Laws other 

than the OSH Act, the FLSA, the ADEA, 

Title VII, and the ADA, a violation is 

willful for purposes of the Order if the 

findings of the relevant enforcement 

agency, court, arbitrator, or arbitral 

panel support a conclusion that the 

contractor or subcontractor knew that its 

conduct was prohibited by the Labor 

Laws or showed reckless disregard for, 

or acted with plain indifference to, 

whether its conduct was prohibited by 

Labor Laws.21 A contractor or 

subcontractor need not act maliciously 

or with a bad purpose to commit a 

willful violation; rather, the focus is on 

whether the enforcement agency, court, 

arbitrator, or arbitral panel’s findings 

support a conclusion that, based on all 

of the facts and circumstances discussed 

in the findings, the contractor or 

subcontractor acted with knowledge or 

reckless disregard of its legal 

requirements. The administrative merits 

determination, civil judgment, or 

arbitral award or decision need not 

include the specific words ‘‘knowledge’’ 

or ‘‘reckless disregard’’; however, the 

factual findings or legal conclusions 

contained in the determination, 

judgment, award or decision must 

support a conclusion that the violation 

meets one of these conditions, as 

described further below. 

Generally, willfulness will be found 

in one of two circumstances. One is 

where the findings of the enforcement 

agency, court, arbitrator, or arbitral 

panel support a conclusion that the 

contractor or subcontractor knew that its 

conduct was prohibited by law, yet 

engaged in the conduct anyway. 

Knowledge can be inferred from the 

factual findings or legal conclusions 

contained in the administrative merits 

determination, civil judgment, or 

arbitral award or decision. For example, 

willfulness will typically be found 

where the administrative merits 

determination, civil judgment, or 

arbitral award or decision supports a 

conclusion that a contractor or 

subcontractor was previously advised 

by responsible government officials that 

its conduct was not lawful, but engaged 

in the conduct anyway. Repeated 

violations may also be willful to the 

extent that the original proceeding 

demonstrates that the contractor or 

subcontractor was put on notice of its 

legal obligations, only to later commit 

the same or a substantially similar 

violation. If the administrative merits 

determination, civil judgment, or 

arbitral award or decision supports a 

conclusion that a contractor or 

subcontractor has a written policy or 

manual that describes a legal 

requirement, and then knowingly 

violates that requirement, the violation 

is also likely to be willful. 

For example, if the administrative 

merits determination, civil judgment, or 

arbitral award or decision supports a 

conclusion that a contractor or 

subcontractor was warned by an official 

from the Department that the housing it 

was providing to migrant and seasonal 

agricultural workers did not comply 

with required safety and health 

standards, and that the contractor or 

subcontractor then failed to make the 

required repairs or corrections, such 

findings demonstrate that the contractor 

or subcontractor engaged in a willful 

violation of MSPA. Likewise, if the 

administrative merits determination, 

civil judgment, or arbitral award or 

decision indicates that a contractor’s or 

subcontractor’s employee handbook 

states that it provides unpaid leave to 

employees with serious health 

conditions as required by the FMLA, but 

the contractor or subcontractor refuses 

to grant FMLA leave or erects 

unnecessary hurdles to employees 

requesting such leave, that violation 

would also likely be willful. Certain 

acts, by their nature, are willful, such as 

conduct that demonstrates an attempt to 

evade statutory responsibilities, 

including the falsification of records, 

fraud or intentional misrepresentation 

in the application for a required 

certificate, payment of wages ‘‘off the 

books,’’ or ‘‘kickbacks’’ of wages from 

workers back to the contractor or 

subcontractor. 

The second type of willful violation is 

where the findings of the enforcement 

agency, court, arbitrator, or arbitral 

panel supports a conclusion that a 

contractor or subcontractor acted with 

reckless disregard or plain indifference 

toward the Labor Laws’ requirements. 

These terms refer to circumstances in 

which the administrative merits 

determination, civil judgment, or 

arbitral award or decision supports a 

conclusion that a contractor or 

subcontractor failed to make sufficient 

efforts to learn or understand whether it 

was complying with the law. Although 

merely inadvertent or negligent conduct 

would not meet this standard, blissful 

ignorance of the law is not a defense to 

a willful violation. The adequacy of a 

contractor’s or subcontractor’s inquiry is 


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judged in light of all of the facts and 

circumstances, including the nature of 

the violation, the complexity of the legal 

issue, and the sophistication of the 

contractor or subcontractor. Reckless 

disregard or plain indifference may also 

be shown where the administrative 

merits determination, civil judgment, or 

arbitral award or decision supports a 

conclusion that a contractor or 

subcontractor was aware of plainly 

obvious violations and failed to take an 

appropriate action. For example, an 

employer who employs a 13-year-old 

child in an obviously dangerous 

occupation, such as operating a forklift, 

is acting in reckless disregard of the law 

even if it cannot be shown that the 

employer actually knew that doing so 

was in violation of one of the Secretary’s 

Hazardous Occupation Orders. Reckless 

disregard or plain indifference will also 

be found if the administrative merits 

determination, civil judgment, or 

arbitral award or decision supports a 

conclusion that a contractor or 

subcontractor acted with purposeful 

lack of attention to its legal 

requirements, such as if managementlevel officials are made aware of a 

health or safety requirement but make 

little or no effort to communicate that 

requirement to lower-level supervisors 

and employees. 

4. Table of Examples 

For a table containing selected 

examples of willful violations, see 

Appendix B. 

C. Repeated Violations 

The Order provides that the standard 

for repeated should ‘‘incorporate 

existing statutory standards’’ to the 

extent such standards exist. See 

§ 4(b)(i)(A). The Order further provides 

that, where no statutory standards exist, 

the standards for repeated should take 

into account ‘‘whether the entity has 

had one or more additional violations of 

the same or a substantially similar 

requirement in the past 3 years.’’ See 

§ 4(b)(i)(B)(2). Accordingly, a violation 

is ‘‘repeated’’ under the Order if it is the 

same as or substantially similar to one 

or more other violations of the Labor 

Laws by the contractor or subcontractor. 

For a violation to be repeated, the 

same or substantially similar other 

violation(s) must be reflected in one or 

more civil judgments, arbitral awards or 

decisions, or adjudicated or uncontested 

administrative merits determinations 

issued within the last three years. 

Substantially similar does not mean 

‘‘exactly the same.’’ United States v. 

Washam, 312 F.3d 926, 930 (8th Cir. 

2002). Rather, two things may be 

substantially similar where they share 

‘‘essential elements in common.’’ 

Alameda Mall, L.P. v. Shoe Show, Inc., 

649 F.3d 389, 392 (5th Cir. 2011) (citing 

dictionary definition of the term). 

Whether a violation is ‘‘substantially 

similar’’ to a past violation turns on the 

nature of the violation and underlying 

obligation itself. 

1. Timeframe 

The civil judgment, arbitral award or 

decision, or adjudicated or uncontested 

administrative merits determination for 

the prior, or predicate, violation(s) must 

have occurred within the three-year 

reporting period. This is the case even 

if a violation may be designated as 

‘‘repeated’’ within the meaning of one of 

the Labor Laws if the prior violation 

took place more than three years earlier. 

For example, under current OSHA 

policy, repeated violations under the 

OSH Act take into account a five-year 

period. However, an OSH Act or OSHAapproved State Plan violation 

designated as a repeated violation in the 

citation would be repeated for purposes 

of the Order only if the predicate 

violation was issued or affirmed within 

the three-year reporting period. 

2. Separate Investigations or 

Proceedings 

The prior violation(s) must be the 

subject of one or more separate 

investigations or proceedings. Thus, for 

example, if a single investigation 

discloses that a contractor or 

subcontractor violated the FLSA and the 

OSH Act, or committed multiple 

violations of any one of the Labor Laws, 

such violations would not be deemed 

‘‘repeated.’’ 

3. Type of Violation 

The prior violation(s) must be 

reflected in one or more civil judgments, 

arbitral awards or decisions, or 

adjudicated or uncontested 

administrative merits determinations. 

To the extent that a prior civil judgment, 

arbitral award or decision, or 

administrative merits determination has 

been reversed or vacated in its entirety 

and is thus exempt from the reporting 

requirements, it cannot render a 

subsequent violation repeated. 

As the definition indicates, for an 

administrative merits determination to 

serve as a predicate violation that will 

render a subsequent violation repeated, 

it must have been adjudicated or be 

uncontested. An adjudicated 

administrative merits determination for 

purposes of the Order is an 

administrative merits determination that 

follows a proceeding in which the 

contractor or subcontractor had an 

opportunity to present evidence or 

arguments on its behalf, such as at a 

hearing or through written submissions, 

before the appropriate decision-making 

authority. An uncontested 

administrative merits determination is 

any non-reversed, non-vacated 

administrative merits determination 

except one in which a timely appeal of 

the determination has been filed or is 

pending before a court or other tribunal 

with jurisdiction to hear the appeal. 

Only the predicate administrative 

merits determination need be 

adjudicated or uncontested when 

determining whether a violation is 

repeated. Thus, for example, if a 

contractor or subcontractor receives an 

OSH Act citation but timely contests it 

before the OSHRC, and during the 

pendency of that proceeding is cited for 

a substantially similar OSH Act 

violation, the second citation would not, 

during the pendency of the OSHRC 

proceeding, be a repeated violation 

because the first citation is neither 

adjudicated nor uncontested. However, 

if OSHRC affirms the first citation, then 

the second citation could be a repeated 

violation because the first violation is 

now the product of an adjudication, 

even though the second violation is 

neither adjudicated nor uncontested. 

This framework is intended to ensure 

that repeated violations will only be 

assessed when the contractor or 

subcontractor has had the opportunity 

to present facts or arguments in its 

defense concerning the predicate 

violation. 

4. Company-Wide Consideration 

Repeated violations may be 

considered on a company-wide basis. 

Thus, a prior violation by any 

establishment of a multi-establishment 

company can render subsequent 

violations repeated, provided the other 

relevant criteria are satisfied. As 

discussed below, the relative size of the 

contractor or subcontractor as compared 

to the number of violations may be a 

mitigating factor. 

5. Substantially Similar Violations 

The prior violation(s) must be the 

same as or substantially similar to the 

violation designated as repeated. 

Whether violations fall under the same 

Labor Law is not determinative of 

whether the requirements underlying 

those violations are substantially 

similar. Rather, this inquiry turns on the 

nature of the violation and underlying 

obligation itself. 

For example, the FLSA contains 

provisions requiring that employers pay 

their covered employees the minimum 

wage and overtime for any hours 

worked over 40 in a workweek. Two or 


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22This is consistent with the treatment of such 

violations as ‘‘repeated’’ in the FLSA’s regulations. 

See 29 CFR 578.3(b). 

23 29 CFR 579.2 treats any two child labor 

violations as repeated. 

more violations of these requirements 

would be deemed substantially similar 

because they all would involve failure 

to pay workers their proper wages.22

However, the FLSA also includes 

prohibitions against forms of child 

labor. Although two or more violations 

of child labor provisions would be 

substantially similar to each other,23 a 

child labor violation would not be 

substantially similar to a violation of the 

FLSA’s wage provisions. The same 

would be true of a violation of the 

FLSA’s provision requiring break time 

for nursing mothers—a violation of that 

provision would not be substantially 

similar to a violation of the wage or 

child labor provisions. 

Similarly, for NLRA violations, any 

two violations of section 8(a)(3), which 

prohibits employers from discriminating 

against employees for engaging in or 

refusing to engage in union activities, 

would be substantially similar, but 

would not be substantially similar to 

violations of section 8(a)(2), which 

prohibits an employer from dominating 

or assisting a labor union through 

financial support or otherwise. 

For violations of the OSH Act, 

violations are repeated if they involve 

the same or a substantially similar 

hazard. A repeated violation may be 

found based on a prior violation of the 

same standard, a different standard, or 

the general duty clause, but the hazards 

themselves must be the same or 

substantially similar. Thus, for example, 

if an employer is cited in one instance 

for failing to provide fall protection on 

a residential construction site, and a 

second time for failing to provide fall 

protection at a commercial construction 

site, those violations would be repeated 

because they involve the same or 

substantially similar hazards, even 

though the cited standards are different. 

Under the FMLA, any two violations 

would generally be considered 

substantially similar to each other, with 

the exception of violations of the notice 

requirements. Thus, denial of leave, 

retaliation, discrimination, failure to 

reinstate an employee to the same or an 

equivalent position, and failure to 

maintain group health insurance would 

all be considered substantially similar, 

given that each violation involves either 

denying FMLA leave or penalizing an 

employee who takes leave. Any two 

instances of failure to provide notice— 

such as failure to provide general notice 

via a poster as well as failure to notify 

individual employees regarding their 

eligibility status, rights, and 

responsibilities—would be substantially 

similar to each other, but not to other 

violations of the FMLA. 

Under MSPA, multiple violations of 

the statute’s requirements pertaining to 

wages, supplies, and working 

arrangements (including, for example, 

failure to pay wages when due, 

prohibitions against requiring workers 

to purchase goods or services solely 

from particular contractors, employers, 

or associations, and violating the terms 

of any working arrangements) would all 

be substantially similar for purposes of 

the Order. Likewise, violations of any of 

MSPA’s requirements related to health 

and safety, including both housing and 

transportation health and safety, would 

all be substantially similar to each other. 

Violations of the statute’s disclosure and 

recordkeeping requirements would also 

be substantially similar to each other. 

Finally, multiple violations related to 

MSPA’s registration requirements 

would be substantially similar. 

For purposes of Title VII, Section 503 

of the Rehabilitation Act of 1973, the 

ADA, the ADEA, Section 6(d) of the 

FLSA (known as the Equal Pay Act, 29 

U.S.C. 206(d)), Executive Order 11246 of 

September 24, 1965, the Vietnam Era 

Veterans’ Readjustment Assistance Act 

of 1972, and the Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974, 

violations are substantially similar if 

they involve the same or an overlapping 

protected status—e.g., race/color, 

national origin, sex, gender identity, 

sexual orientation, religion, disability, 

age, protected veterans’ status—even if 

they do not involve the same 

employment practice—e.g., hiring, 

firing, harassment, compensation. This 

is true regardless of whether the 

violations arise under the same statute 

or different statutes, e.g., an ADA 

violation and a Section 503 violation. 

For example, two violations of 

requirements not to discriminate on the 

basis of sex would be substantially 

similar even if they involved two 

different employment practices—e.g., 

hiring and promotions. Additionally, if, 

for example, the first violation involves 

discrimination on the basis of national 

origin and the second violation involves 

discrimination on the basis of national 

origin and race, the violations are 

substantially similar because they 

involve an overlapping protected status, 

namely, discrimination on the basis of 

national origin. 

Other violations arising under two or 

more different statutes may also be 

substantially similar. For example, 

several of the Labor Laws have 

provisions prohibiting retaliation 

against individuals who exercise 

protected rights. An employer who 

commits two or more violations 

involving retaliation will be found to 

have engaged in repeated violations. 

Similarly, failure to pay wages 

mandated by the FLSA, SCA, DBA, 

MSPA, or Executive Order 13658 would 

be substantially similar violations since 

all of these violations concern the 

failure to pay wages mandated by law. 

Likewise, violations of the OSH Act and 

violations of the health and safety 

provisions of MSPA could be 

substantially similar if they involve 

substantially similar hazards. Two or 

more failures to post notices required 

under the Labor Laws would also be 

deemed substantially similar, as would 

be two or more failures to keep records. 

The Department specifically seeks 

comments by interested parties 

regarding its proposed definition of 

‘‘substantially similar’’ for determining 

if a violation is repeated under the 

Order. 

6. Table of Examples 

For a table containing selected 

examples of repeated violations, see 

Appendix C. 

D. Pervasive Violations 

The Order provides that, where no 

statutory standards exist, the standard 

for pervasive should take into account 

‘‘the number of violations of a 

requirement or the aggregate number of 

violations of requirements in relation to 

the size of the entity.’’ See § 4(b)(i)(B)(4). 

No statutory standards for ‘‘pervasive’’ 

exist under the Labor Laws. 

Violations are ‘‘pervasive’’ if they 

reflect a basic disregard by the 

contractor or subcontractor for the Labor 

Laws as demonstrated by a pattern of 

serious or willful violations, continuing 

violations, or numerous violations. 

Violations must be multiple to be 

pervasive, although the number of 

violations necessarily depends on the 

size of the contractor or subcontractor, 

because larger employers, by virtue of 

their size, are more likely to have 

multiple violations. To be pervasive, the 

violations need not be of the same or 

similar requirements of the Labor Laws. 

Pervasive violations may exist where 

the contractor or subcontractor commits 

multiple violations of the same Labor 

Law, regardless of their similarity, or 

violations of more than one of the Labor 

Laws. This category is intended to 

identify those contractors and 

subcontractors whose numerous 

violations of Labor Laws indicate that 

they may view sanctions for their 

violations as merely part of the ‘‘cost of 

doing business,’’ an attitude that is 


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inconsistent with the level of 

responsibility required by the FAR. 

LCAs and contractors are strongly 

encouraged to consult with the 

Department when determining whether 

violations are pervasive. 

Pervasive violations differ from 

repeated violations in a number of ways. 

First, unlike repeated violations, 

pervasive violations need not be 

substantially similar, or even similar at 

all, as long as each violation involves 

one of the Labor Laws. Additionally, 

pervasive violations, unlike repeated 

violations, may arise in the same 

proceeding or investigation. For 

example, a small tools manufacturer 

with a single location may be cited 

multiple times for serious violations 

under the OSH Act—once for improper 

storage of hazardous materials, once for 

failure to provide employees with 

protective equipment, once for 

inadequate safeguards on heavy 

machinery, once for lack of fall 

protection, once for insufficient 

ventilation, once for unsafe noise 

exposure, and once for inadequate 

emergency exits. While these violations 

are sufficiently different that they would 

not constitute repeated violations, such 

a high number of workplace safety 

violations relative to the size of a small 

company with only a single location 

would likely demonstrate a basic 

disregard by the company for workers’ 

safety and health, particularly if the 

company lacked a process for 

identifying and eliminating serious 

health hazards. As such, these 

violations would likely be considered 

pervasive. 

In addition, violations across multiple 

Labor Laws—especially when they are 

serious, willful, or repeated—are an 

indication of pervasive violations that 

warrant careful examination by the 

contracting officer, in consultation with 

the LCA. For example, a medium-sized 

company that provides janitorial 

services at federal facilities may be 

found to have violated the SCA for 

failure to pay workers their required 

wages, Title VII for discrimination in 

hiring on the basis of national origin, 

the National Labor Relations Act for 

demoting workers who are seeking to 

organize a union, and the Family and 

Medical Leave Act for denying workers 

unpaid leave for serious health 

conditions. While these violations are 

substantively different from each other, 

a medium-sized employer that violates 

so many Labor Laws is demonstrating a 

basic disregard for its legal obligations 

to its workers and is likely committing 

pervasive violations. 

Whereas a repeate d violation may be 

found anytime a contractor or 

subcontractor commits two or more 

substantially similar violations, there is 

no specific numeric threshold for 

pervasive violations. Rather, the number 

of violations necessary will depend on 

the size of the contractor or 

subcontractor, as well as the nature of 

the violations themselves. 

A series of repeated violations may, 

however, become pervasive, particularly 

if it demonstrates that a contractor or 

subcontractor, despite knowledge of its 

violations, fails to make efforts to 

change its practices and continues to 

violate the law. For example, if the 

Department’s Wage and Hour Division 

issued several administrative merits 

determinations over the course of three 

years finding that a contractor or 

subcontractor illegally employed 

underage workers, and the contractor or 

subcontractor, despite receiving these 

notices, failed to make efforts to change 

its child labor practices and continued 

to violate the FLSA’s child labor 

provisions, the series of violations 

would likely be considered pervasive. 

For smaller companies, a smaller 

number of violations may be sufficient 

for a finding of pervasiveness, while for 

large companies, pervasive violations 

will typically require either a greater 

number of violations or violations 

affecting a significant number or 

percentage of a company’s workforce. 

For example, if the Department’s Office 

of Federal Contract Compliance 

Programs finds that a large contractor 

that provides food services at federal 

agencies nationwide used preemployment screening tests for most 

jobs at the company’s facilities that 

resulted in Hispanic workers being 

hired at a significantly lower rate than 

non-Hispanic workers over a 5-year 

period, and in addition, the Wage and 

Hour Division finds that the company 

failed to comply with the SCA’s 

requirements to pay its workers 

prevailing wages at many of its 

locations, such violations would likely 

be pervasive, notwithstanding the large 

size of the contractor, because the 

contractor’s numerous serious violations 

spanned most of its locations and 

affected many of its workers. 

Conversely, had the company only 

engaged in these prohibited practices at, 

for example, only a few of its locations, 

such violations might not necessarily be 

considered pervasive. 

Similarly, if a large company that 

provides laundry services to military 

bases in several states is cited 50 times 

for serious OSHA violations affecting 

most of its locations over the span of 

one year, and a number of the citations 

are for failure to abate dangerous 

conditions that OSHA had cited 

previously, and as a result the company 

is placed on OSHA’s Severe Violator 

Enforcement Program, such violations 

would likely be pervasive because the 

sheer number of violations over such a 

short period of time is evidence that the 

company is ignoring persistent threats 

to workers’ safety, fails to treat safety as 

a serious problem, and is acting in 

disregard of its legal obligations. 

Conversely, if the violations affected 

only a few of the company’s facilities, 

or if the company had acted quickly to 

abate any violations, the violations 

might not necessarily be considered 

pervasive. 

The Department specifically seeks 

comments by interested parties 

regarding how best to assess the number 

of a contractor’s or subcontractor’s 

violations in light of its size. 

An additional relevant factor in 

determining whether violations are 

pervasive is the involvement of higherlevel management officials. When Labor 

Laws are violated with either the 

explicit or implicit approval of higherlevel management, such approval 

signals that future violations will be 

tolerated or condoned, and may 

dissuade workers from reporting 

violations or raising complaints. Thus, 

to the extent that higher-level 

management officials were involved in 

violations themselves (such as 

discrimination in hiring by an 

executive, or a decision by an executive 

to cut back on required safety 

procedures that led to violations of the 

OSH Act) or knew of violations and 

failed to take appropriate actions (such 

as ignoring reports or complaints by 

workers), the violations are more likely 

to be deemed pervasive. For example, if 

the vice president of a construction 

company directs a foreman not to hire 

Native American workers, and as a 

result the company is later found to 

have committed numerous Title VII 

violations against job applicants, such 

violations are likely to be pervasive. 

Likewise, if the chief safety officer at a 

chemical plant fields complaints from 

workers about several unsafe working 

conditions but then fails to take action 

to remedy the unsafe conditions, such 

violations are also likely to be pervasive 

because the dangerous working 

conditions were willfully sanctioned by 

a high-level company official and were 

evident throughout the chemical plant. 

Such behavior indicates that the 

company views penalties for such 

violations as ‘‘the cost of doing 

business,’’ rather than indicative of 

significant threats to its workers’ health 

and safety that must be addressed. By 

the same token, managers are expected 

to play an active role in ensuring Labor 


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Law compliance in their workforce 

rather than abdicating their 

responsibility to do so. If managers 

actively avoid learning about labor law 

violations (such as by failing to exercise 

appropriate oversight or ‘‘passing the 

buck’’ to others), this may also indicate 

that the violations are pervasive. 

For a table containing selected 

examples of pervasive violations, see 

Appendix D. 

E. Assessing Violations and Considering 

Mitigating Factors 

When assessing violations of the 

Labor Laws by a contractor or 

subcontractor, all the facts and 

circumstances of the violations, as well 

as any mitigating factors, should be 

considered. 

The following types of violations raise 

particular concerns regarding the 

contractor’s or subcontractor’s 

compliance with the Labor Laws: 

• Pervasive violations. Pervasive 

violations, by definition, demonstrate a 

basic disregard for the Labor Laws. Such 

disregard of legal obligations creates a 

heightened danger that the contractor or 

subcontractor may, in turn, disregard its 

contractual obligations as well. 

Additionally, such contractors and 

subcontractors are more likely to violate 

the Labor Laws in the future, and those 

violations—and any enforcement 

proceedings or litigation that may 

ensue—may imperil their ability to meet 

their obligations under a contract. 

Finally, that a contractor or 

subcontractor shows such disregard for 

the Labor Laws is highly probative of 

whether the contractor or subcontractor 

lacks integrity and business ethics. 

• Violations that meet two or more of 

the categories discussed above (serious, 

repeated, and willful). A violation that 

falls into two or more of the categories 

is also, as a general matter, more likely 

to be probative of the contractor’s or 

subcontractor’s lack of integrity and 

business ethics than a violation that 

falls into only one of those categories. 

• Violations that are reflected in final 

orders. To the extent that the judgment, 

determination, or order finding a Labor 

Law violation is final (because appeals 

and opportunities for further review 

have been exhausted or were not 

pursued), the violation should be given 

greater weight. Likewise, where a 

violation has not resulted in a final 

judgment, determination, or order, it 

should be given lesser weight. 

• Violations of particular gravity. In 

the Department’s view, certain Labor 

Laws violations that are serious under 

the Order should be given greater 

weight, including violations related to 

the death of an employee; violations 

involving a termination of employment 

for exercising a right protected under 

the Labor Laws; violations that 

detrimentally impact the working 

conditions of all or nearly all of the 

workforce at a worksite; and violations 

where the amount of back wages, 

penalties, and other damages awarded is 

greater than $100,000. 

Various factors may mitigate the 

existence of a Labor Law violation. The 

Department respects the fact that most 

employers endeavor to comply with the 

Labor Laws. The Department values 

highly contractors’ good-faith efforts to 

comply, and it encourages them to 

report these efforts, including workplace 

policies that foster compliance. 

In most cases, the most important 

mitigating factors will be the extent to 

which the contractor or subcontractor 

has remediated the violation and taken 

steps to prevent its recurrence. Other 

mitigating factors include where the 

contractor or subcontractor has only had 

a single violation; where the number of 

violations is low relative to the size of 

the contractor or subcontractor; where 

the contractor or subcontractor has 

implemented a safety and health 

management program, a collectivelybargained grievance procedure, or other 

compliance program; where there was a 

recent legal or regulatory change; where 

the findings of the enforcement agency, 

court, arbitrator, or arbitral panel 

support a conclusion that contractor or 

subcontractor acted in good faith and 

had reasonable grounds for believing 

that it was not violating the law; and 

where the contractor or subcontractor 

has maintained a long period of 

compliance following any violations. 

Contractors and subcontractors should 

provide any information that may 

mitigate a Labor Law violation. 

1. Remediation of Violation, Including 

Labor Compliance Agreements 

As noted above, the extent to which 

a contractor or subcontractor has 

remediated a Labor Law violation will 

typically be the most important factor 

that can mitigate the existence of a 

violation. Remediation is an indication 

that a contractor or subcontractor has 

assumed responsibility for a violation 

and has taken steps to bring itself into 

compliance with the law going forward. 

Conversely, failure to remediate a 

violation may demonstrate disregard for 

legal obligations and workers, which in 

turn would have bearing on whether the 

contractor or subcontractor lacks 

integrity or business ethics. In most 

cases, for remediation to be considered 

mitigating, it should involve two 

components. First, the remediation 

should correct the violation itself, 

including by making any affected 

workers whole. For example, this could 

involve abating a dangerous hazard, 

paying workers their back wages owed, 

or reinstating a wrongfully discharged 

employee. Second, the remediation 

should demonstrate efforts by the 

contractor or subcontractor to prevent 

similar violations in the future. For 

example, if a contractor or subcontractor 

improperly misclassified workers as 

exempt from the FLSA and pays any 

back wages due to the workers without 

reviewing its classifications of the 

workers going forward, it will likely 

commit similar violations in the future. 

Particular consideration will be given 

where the contractor or subcontractor 

has implemented remediation on an 

enterprise-wide level or has entered into 

an enhanced settlement agreement with 

the relevant enforcement agency or 

agencies that goes beyond what is 

minimally required under the law to 

address appropriate remedial or 

compliance measures. 

Similarly, when a contractor or 

subcontractor enters into a labor 

compliance agreement (defined above) 

with the enforcement agency, that 

agreement is an important mitigating 

factor. Entering into a labor compliance 

agreement indicates that the contractor 

or subcontractor recognizes the 

importance that the Federal Government 

places on compliance with the Labor 

Laws. 

2. Only One Violation 

The Order provides that, in most 

cases, a single violation of a Labor Law 

may not necessarily give rise to a 

determination of lack of responsibility, 

depending on the nature of the 

violation. See § 4(a)(i). However, a 

contracting agency is not precluded 

from making a determination of nonresponsibility based on a single 

violation in the rare circumstances 

where merited. 

3. Low Number of Violations Relative to 

Size 

Larger employers, by virtue of their 

size, are more likely to have multiple 

violations than smaller ones. When 

assessing contractors or subcontractors 

with multiple violations, the size of the 

contractor or subcontractor will be 

considered. 

4. Safety and Health Programs or 

Grievance Procedures 

Implementation of a safety and health 

management program such as OSHA’s 

1989 Safety and Health Program 

Management guidelines or any updates 


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24 In addition, there are two industry consensus 

standards that, if implemented, should be 

considered as mitigating factors for violations 

involving workplace safety and health. The 

American National Standards Institute (ANSI) and 

American Industrial Hygiene Association (AIHA) 

have published a voluntary consensus standard, 

ANSI/AIHA Z10—2005 Occupational Safety and 

Health Management Systems (ANSI/AIHA, 2005), 

and the Occupational Health and Safety Assessment 

Series (OHSAS) Project Group has produced a 

similar document, OHSAS 18001—2007 

Occupational Health and Safety Management 

Systems (OHSAS Project Group, 2007). These 

consensus-based standards have been widely 

accepted in the world of commerce and adopted by 

many businesses on a voluntary basis. They all have 

a similar set of elements (management leadership, 

worker participation, hazard identification and 

assessment, hazard prevention and control, 

education and training, and program evaluation and 

improvement) that focus on finding all hazards and 

developing a workplace plan for prevention and 

control of those hazards. 

25 In a second proposed guidance to be published 

later in the Federal Register, the Department will 

identify those State laws that are equivalent to the 

FLSA, the DBA, and the SCA. 

to those guidelines,24 grievance 

procedures (including collectivelybargained ones), monitoring 

arrangements negotiated as part of an 

enhanced settlement agreement, or other 

compliance programs foster a corporate 

culture in which workers are 

encouraged to raise legitimate concerns 

about Labor Laws violations without the 

fear of repercussions. Such programs 

and procedures may prompt workers to 

report violations that would, under 

other circumstances, go unreported. 

Therefore, the implementation of such 

programs or procedures will be 

considered a mitigating factor, 

particularly as to violations that might 

otherwise be deemed repeated or 

pervasive. 

5. Recent Legal or Regulatory Change 

To the extent that the Labor Laws 

violations can be traced to a recent legal 

or regulatory change, that may be a 

mitigating factor. The change must be 

recent, and the violations must not have 

been violations but for the change. 

6. Good Faith and Reasonable Grounds 

It may be a mitigating factor if the 

contractor or subcontractor shows that it 

made efforts to ascertain its legal 

obligations and to follow the law, and 

that its actions under the circumstances 

were objectively reasonable. For 

example, if a contractor or subcontractor 

acts in reasonable reliance on advice 

from a responsible official from the 

relevant enforcement agency, or an 

administrative or authoritative judicial 

ruling, such reliance will typically 

demonstrate good faith and reasonable 

grounds. This factor may also apply 

where the contractor’s or 

subcontractor’s legal obligations are 

unclear, such as when a new statute, 

rule, or standard is first implemented. 

7. Significant Period of Compliance 

Following Violations 

If, following one or more violations 

within the three-year reporting period, 

the contractor or subcontractor 

maintains a steady period of compliance 

with the Labor Laws, such compliance 

may mitigate the existence of prior 

violations (e.g., violations were reported 

from 21⁄2 years ago and there have been 

none since). 

IV. Paycheck Transparency Provisions 

Transparency in the relationships 

between employers and their workers is 

critical to workers’ understanding of 

their legal rights and to the resolution of 

workplace disputes. When workers lack 

information about how their pay is 

calculated and their status as employees 

or independent contractors, workers are 

less aware of their rights and employers 

are less likely to comply with labor 

laws. Providing workers with 

information about how their pay is 

calculated each pay period will enable 

workers to raise any concerns about pay 

more quickly, and will encourage 

proactive efforts by employers to resolve 

such concerns. Similarly, providing 

workers who are classified as 

independent contractors with notice of 

their status will enable them to better 

understand their legal rights, evaluate 

their status as independent contractors, 

and raise any concerns during the 

course of the working relationship as 

opposed to after it ends (which will 

increase the likelihood that the 

employer and the worker will be able to 

resolve any concerns more quickly and 

effectively). Thus, the Order’s paycheck 

transparency provisions will increase 

transparency in compensation 

information and improve working 

relationships. 

A. Wage Statement 

The Order requires contracting 

agencies to ensure that, for covered 

procurement contracts, provisions in 

solicitations and clauses in contracts 

require contractors to provide all 

workers under the contract for whom 

they must maintain wage records under 

the FLSA, the DBA, the SCA, or 

equivalent State laws 25 with a 

‘‘document’’ each pay period with 

‘‘information concerning that 

individual’s hours worked, overtime 

hours, pay, and any additions made to 

or deductions made from pay.’’ See 

§ 5(a). Contracting agencies shall also 

ensure that contractors ‘‘incorporate this 

same requirement’’ into covered 

subcontracts. Id. 

The Order requires that the wage 

statement be provided to ‘‘all 

individuals performing work’’ for whom 

the contractor or subcontractor is 

required to maintain wage records 

under the FLSA, the DBA, the SCA, or 

equivalent State laws. This means that 

a wage statement must be provided to 

every worker subject to the FLSA, the 

DBA, the SCA, or equivalent State laws 

regardless of the contractor’s or 

subcontractor’s classification of the 

worker as an employee or independent 

contractor. 

The Order states that the wage 

statement provided to workers each pay 

period must be a ‘‘document.’’ If the 

contractor or subcontractor regularly 

provides documents to its workers by 

electronic means, the wage statement 

may be provided electronically if the 

worker can access it through a 

computer, device, system, or network 

provided or made available by the 

contractor or subcontractor. 

The Order further provides that the 

wage statement must be issued every 

pay period and contain the total number 

of hours worked in the pay period and 

the number of those hours that were 

overtime hours. The FAR Council’s 

proposed regulations would require, if 

the wage statement is not provided 

weekly and is instead provided biweekly or semi-monthly (because the 

pay period is bi-weekly or semimonthly), that the hours worked and 

overtime hours contained in the wage 

statement be broken down to 

correspond to the period (which will 

almost always be weekly) for which 

overtime is calculated and paid. If the 

hours worked and overtime hours are 

aggregated in the wage statement for the 

entire pay period as opposed to being 

broken down by week, the worker may 

not be able to understand and evaluate 

how the overtime hours were 

calculated. For example, if the pay 

period is bi-weekly and the worker is 

entitled to overtime pay for hours 

worked over 40 in a week, then the 

wage statement must provide the hours 

worked and any overtime hours for the 

first week and the hours worked and 

any overtime hours for the second week. 

The Order states that the wage 

statement must also contain the 

worker’s pay—a reference to the gross 

pay due the worker for the pay period— 

as well as all additions to and 

deductions from the gross pay. 

Additions to pay may include bonuses, 

awards, and shift differentials. 

Deductions from pay include 

deductions required by law (such as 

withholding for taxes), voluntary 


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26Workers may be entitled to overtime under the 

FLSA, but under terms other than time-and-a-half 

for hours worked over 40 in a week. See, e.g., 29 

U.S.C. 207(j), (k). Such workers are not exempt from 

the FLSA’s overtime requirements, and wage 

statements provided to them under the Order must 

contain a record of their hours worked. 

27As specified in the FAR Council’s proposed 

regulations, if a significant portion of the 

contractor’s or subcontractor’s workforce is not 

fluent in English, the document provided notifying 

the worker of exempt status must also be in the 

language(s) other than English in which the 

significant portion of the workforce is fluent. 

28Oregon does not expressly require disclosure of 

overtime hours. However, Or. Admin. Rule 839– 

020–0012 requires that ‘‘[i]f multiple rates of pay 

are paid, the total number of hours worked at each 

rate of pay’’ must be included on the wage 

statement, and overtime pay is described as a ‘‘rate 

of pay’’ by Or. Admin. R. 839–020–0030. 

29Neither of these two options would satisfy the 

Order’s requirement that an employer inform 

workers of their status as exempt from overtime in 

order to provide a wage statement to exempt 

employees that does not include a record of hours 

worked. 

30The same is true for local wage statement 

ordinances. The Department will list on the Web 

site any newly enacted local ordinances that are 

substantially similar. 

deductions by the worker (such as 

contributions to health insurance 

premiums or retirement accounts), and 

all other deductions or reductions made 

from gross pay regardless of the reason. 

Providing a worker with gross pay and 

all additions to and deductions from 

gross pay will necessarily allow the 

worker to understand the net pay 

received and how it was calculated. 

According to the Order, the wage 

statement provided to workers who 

have no entitlement to overtime 

compensation under the FLSA ‘‘need 

not include a record of hours worked if 

the contractor informs the individuals of 

their exempt status.’’ See § 5(a). Because 

such workers are exempt from the 

FLSA’s overtime compensation 

requirements, there will be no overtime 

hours to include on the wage 

statement.26 To sufficiently inform a 

worker of exempt status so that the wage 

statement need not include hours 

worked, the contractor or subcontractor 

must provide written notice to the 

worker stating that the worker is exempt 

from the FLSA’s overtime compensation 

requirements (oral notice is not 

sufficient).27 If the contractor or 

subcontractor regularly provides 

documents to its workers by electronic 

means, the document may be provided 

electronically if the worker can access it 

through a computer, device, system, or 

network provided or made available by 

the contractor or subcontractor. 

The wage statement requirements 

‘‘shall be deemed to be fulfilled’’ where 

a contractor or subcontractor ‘‘is 

complying with State or local 

requirements that the Secretary of Labor 

has determined are substantially similar 

to those required’’ by the Order. See 

§ 5(a). This proposed guidance, when 

final, will therefore include a list of the 

State and local jurisdictions that the 

Secretary determines to have wage 

statement requirements that are 

‘‘substantially similar’’ to the Order’s 

wage statement requirement 

(‘‘Substantially Similar Wage Payment 

States’’). Providing a worker in one of 

these States with a wage statement that 

complies with the requirements of that 

State would satisfy the Order’s wage 

statement requirement. 

As described above, substantially 

similar does not mean ‘‘exactly the 

same.’’ Washam, 312 F.3d at 930. 

Rather, two things may be substantially 

similar where they share ‘‘essential 

elements in common.’’ Alameda Mall, 

649 F.3d at 392. The Secretary is 

considering two options for determining 

whether State or local requirements are 

substantially similar. 

One option is to find a State or local 

requirement to be substantially similar 

where it requires wage statements to 

include the essential elements of 

overtime hours or overtime earnings, 

total hours, gross pay, and any additions 

or deductions. When overtime hours or 

earnings are disclosed in a wage 

statement, workers can identify from the 

face of the document whether they have 

been paid for overtime hours. The 

benefit of this option is that workers 

would be more likely to become aware 

of a problem with their paycheck at an 

earlier date, increasing the likelihood 

that the problem will be resolved 

efficiently. Applying this method, the 

current list of Substantially Similar 

Wage Payment States would be Alaska, 

California, Connecticut, the District of 

Columbia, Hawaii, New York, and 

Oregon.28

A second option would allow wage 

statements to omit overtime hours or 

earnings, so long as they instead include 

an element not listed in the Order—the 

‘‘rate of pay’’—in addition to the 

essential elements of total hours, gross 

pay, and any additions or deductions. 

The benefit of this option is that it 

would allow more flexibility while still 

requiring wage statements to provide 

enough information for a worker to 

calculate whether he or she has been 

paid in full. By working backwards from 

the information provided—dividing the 

gross earnings by the number of hours 

worked and comparing the result to the 

rate of pay—the worker should be able 

to determine whether the paycheck 

includes payment for overtime hours. 

The drawback of this option is that a 

failure to pay overtime would not be 

immediately identifiable from the face 

of the document as it would be in the 

first option. Instead, workers would 

need to complete a calculation in order 

to catch an error. Thus, if the 

Department were to choose this second 

option, workers in some of the 

Substantially Similar Wage Payment 

States would be at greater risk of 

missing a problem with a paycheck than 

if the Department were to choose the 

first option. Applying this second 

method, the current list of Substantially 

Similar Wage Payment States would be 

Alaska, California, Connecticut, the 

District of Columbia, Hawaii, 

Massachusetts, Minnesota, New York, 

Oregon, Pennsylvania, Texas, Vermont, 

Washington, and Wisconsin.29 The 

Department specifically seeks comments 

regarding the two options above. It is 

also open to considering other 

combinations of essential elements or 

other ways to determine whether State 

or local requirements are substantially 

similar. 

After this proposed guidance is 

finalized, the Department will maintain 

on its Web site a list of the Substantially 

Similar Wage Payment States. The 

Secretary recognizes that States may 

change their wage statement laws, such 

that some States whose wage statement 

laws are initially designated as 

substantially similar may later weaken 

them, and other States whose laws are 

not initially designated as substantially 

similar may later strengthen them. 

When the Secretary determines that a 

State must be added to or removed from 

the list of Substantially Similar Wage 

Payment States, notice of such changes 

will be published on the Web site.30 The 

Department may also issue All Agency 

Memoranda or similar direction to 

contracting agencies and the public to 

communicate updates to the list of the 

Substantially Similar Wage Payment 

States. 

B. Independent Contractor Notice 

The Order requires contractors and 

subcontractors, for workers under 

covered contracts for whom they are 

required to maintain wage records 

under the FLSA, the DBA, the SCA, or 

equivalent State laws, to provide those 

workers whom they treat as 

independent contractors with ‘‘a 

document informing the individual of 

this [independent contractor] status.’’ 

See § 5(a). For covered contracts, 

provisions in solicitations and clauses 

in contracts should be included 

requiring such notice to workers treated 

as independent contractors. 


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31As specified in the FAR Council’s proposed 

regulations, if a significant portion of the 

contractor’s or subcontractor’s workforce is not 

fluent in English, the document notifying the 

worker of independent contractor status must also 

be in the language(s) other than English in which 

the significant portion of the workforce is fluent. 

The notice informing the worker of 

status as an independent contractor 

must be provided to each individual 

worker treated as an independent 

contractor before the worker performs 

any work under the contract. The notice 

must be a ‘‘document’’ (oral notice of 

independent contractor status is not 

sufficient).31 The document must be 

separate from any contract entered into 

between the contractor or subcontractor 

and the independent contractor. If the 

contractor or subcontractor regularly 

provides documents to its workers by 

electronic means, the document may be 

provided electronically if the worker 

can access it through a computer, 

device, system, or network provided or 

made available by the contractor or 

subcontractor. 

As of the effective date of the Order’s 

independent contractor notice 

requirement, contractors and 

subcontractors must provide the 

required notice to each independent 

contractor then engaged to perform 

work under a covered contract. 

Thereafter, contractors and 

subcontractors must provide the notice 

to an independent contractor each time 

that he or she is engaged to perform 

work under a covered contract (and 

certainly before he or she performs any 

work under the contract). The notice 

provided is specific to a particular 

covered contract regardless of whether 

the worker performs the same type of 

work on another covered contract. If a 

worker who has performed work under 

a contract and who received notice that 

his or her status was as an independent 

contractor is engaged to perform work as 

an independent contractor under a 

different covered contract, then the 

contractor or subcontractor shall 

provide the worker with a new notice 

informing the worker of his or her status 

as an independent contractor for work 

performed under the different contract. 

The provision of the notice to a 

worker informing the worker that he or 

she is an independent contractor does 

not mean that the worker is correctly 

classified as an independent contractor 

under applicable laws. The Department 

will not consider the notice when 

determining whether a worker is an 

independent contractor or employee. 

The determination of whether a worker 

is an independent contractor under a 

particular law remains governed by that 

law’s definition of ‘‘employee’’ and its 

standards for determining for its 

purposes which workers are 

independent contractors and not 

employees. 

V. Invitation To Comment 

As discussed above, the Department, 

in its discretion, solicits comments on 

this proposed initial guidance document 

in the manner and before the date 

specified herein. After the comment 

period has ended, the Department will 

publish final guidance in the Federal 

Register. 

This solicitation of public feedback is 

intended to improve the internal 

management of the Executive Branch 

and is not intended to, and does not, 

create any right or benefit, substantive 

or procedural, enforceable at law or in 

equity, against the United States, its 

agencies or other entities, its officers or 

employees, or any other person. 

VI. Next Steps 

This proposed guidance is the first 

step in the phased implementation of 

the Order. 

The Order requires the FAR Council 

to propose to amend the Federal 

Acquisition Regulation to incorporate 

the Order’s requirements into the 

process by which contracting officers 

make pre-award responsibility 

determinations, among other necessary 

and appropriate proposed changes. See 

§ 4(a). This proposed guidance, when 

finalized, will assist the FAR Council in 

promulgating regulations that will be 

binding for covered contracts. The 

Order further requires the GSA 

Administrator, in consultation with 

other relevant agencies, to develop a 

single Web site for Federal contractors 

to use for all Federal contract reporting 

requirements related to the Order to the 

extent practicable. See § 4(d). The final 

FAR rule will include the reporting Web 

site address for Federal contractors. 

As indicated in this proposed 

guidance, the Department will publish 

in the Federal Register at a later date a 

second proposed guidance under this 

Order. 

Signed this 19th day of May 2015. 

Mary Beth Maxwell, 

Principal Deputy Assistant Secretary, Office 

of the Assistant Secretary for Policy, U.S. 

Department of Labor. 

Appendix A: Examples of Serious Violations 

All violations of federal labor laws are serious, but in the context of Executive Order 13673, Fair Pay and Safe Workplaces, the Department of 

Labor has identified certain violations as ‘‘serious,’’ ‘‘willful,’’ ‘‘repeated,’’ and ‘‘pervasive.’’ This subset of all labor violations represents the violations that are most concerning and bear on the assessment of a contractor or subcontractor’s integrity and business ethics. The Department 

has purposely excluded from consideration violations that could be characterized as inadvertent or minimally impactful. Ultimately, each contractor’s disclosed violations of Labor Laws will be assessed on a case-by-case basis in light of the totality of the circumstances, including the 

severity of the violation or violations, the size of the contractor, and any mitigating factors. In most cases, even for violations subject to disclosure and consideration under the Order, a single violation of one of the Labor Laws will not give rise to a determination of lack of responsibility. 

The chart below includes a non-exhaustive list of examples of Labor Laws violations that may be found to be ‘‘serious’’ under the Department’s 

proposed guidance for Executive Order 13673. These are examples only: They are not minimum requirements, nor are they exclusive of 

other violations under each Labor Law that may be serious. The chart does not include violations of ‘‘equivalent state laws,’’ which are also 

covered by the Order, but (with the exception of OSHA State Plans, which are addressed in the current proposed guidance) will be addressed in future guidance. Where the chart indicates that a violation is serious for more than one reason, this means that either of the reasons listed is an independent ground for finding that the violation is serious, as defined in the guidance. 

Summary of Definition of ‘‘Serious Violation’’ 

The full definition of a ‘‘serious violation’’ is set forth in section III.A of the Department of Labor’s proposed guidance. When evaluating violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, should refer to the full definition 

in the guidance. 

In summary, the guidance provides that a violation of one of the Labor Laws is serious if it involves at least one of the following: 

• An OSH Act or OSHA-approved State Plan citation was designated as serious, there was a notice of failure to abate an OSH Act violation, or an imminent danger notice was issued under the OSH Act or an OSHA-approved State Plan; 

• The affected workers comprised 25% or more of the workforce at the worksite; 


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• Fines and penalties of at least $5,000 were assessed or back wages of at least $10,000 were due or injunctive relief was imposed by an 

enforcement agency or a court; 

• The contractor’s or subcontractor’s conduct violated MSPA or the child labor provisions of the FLSA and caused or contributed to the 

death or serious injury of one or more workers; 

• Employment of a minor who was too young to be legally employed or in violation of a Hazardous Occupations Order; 

• The contractor or subcontractor engaged in an adverse employment action (including discharge, refusal to hire, suspension, demotion, or 

threat) or is responsible for unlawful harassment against one or more workers for exercising any right protected by any of the Labor 

Laws; 

• The findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor engaged in a pattern or practice of discrimination or systemic discrimination; 

• The findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor interfered with the enforcement agency’s investigation; or 

• The contractor or subcontractor breached the material terms of any agreement or settlement entered into with an enforcement agency, or 

violated any court order, any administrative order by an enforcement agency, or any arbitral award. 

When evaluating Labor Laws violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, 

will review all of the above criteria to determine whether a violation is serious. The examples below are intended to illustrate how these criteria may arise in different contexts, but a violation will be serious if it meets any of the above criteria. 

Labor law Example of serious violation 

Fair Labor Standards Act (FLSA) .............. The Wage and Hour Division of DOL (WHD) found that a contractor violated the minimum wage and 

overtime provisions of the FLSA. It issued the contractor a Form WH–56 ‘‘Summary of Unpaid 

Wages,’’ and also assessed civil monetary penalties. The back wages due totaled $75,000, and 

the civil monetary penalties assessed totaled $6,000. 

This is a serious violation for two reasons. First, a violation of any of the Labor Laws is serious if 

fines and penalties of at least $5,000 were assessed. Second, a violation of any of the Labor 

Laws is serious if back wages of at least $10,000 were due. Conversely, if the back wages due 

totaled less than $10,000 and the civil monetary penalties assessed had totaled less than $5,000, 

the violation would not be a serious violation, assuming that none of the other criteria for seriousness listed above are met. 

WHD finds that a meat processor employed 10 workers under the age of 18 to operate power-driven meat processing machines, such as slicers, saws, and choppers. One of these workers died in 

an accident involving one of the machines. 

This is a serious violation for two reasons. First, a violation of FLSA’s child labor provisions is serious if it involves the employment of a minor too young to be legally employed or in violation of a 

Hazardous Occupations Order. The employment of minors in the above-described occupation is 

prohibited under Hazardous Occupation Order No. 10. Second, a violation of FLSA’s child labor 

provisions is serious if it causes or contributes to the death or serious injury of one or more workers. Conversely, the employment of, for example, a 14- or 15-year-old minor in excess of three 

hours outside school hours on a school day in a non-hazardous, non-agricultural job in which the 

child is otherwise permitted to work would not be a serious violation, assuming that none of the 

other criteria for seriousness listed above are met. 

Occupational Safety and Health (OSH) 

Act.

OSHA issued a citation for failing to protect against fall hazards on a construction worksite. The citation was designated as ‘‘serious.’’ 

This is a serious violation because all citations designated as serious by OSHA (or an OSHA State 

Plan) are serious under the Order. Conversely, if OSHA (or the equivalent state agency under an 

OSHA State Plan) had designated the violation as ‘‘other-than-serious,’’ the violation would not be 

a serious violation under the Order. 

Migrant and Seasonal Agricultural Worker 

Protection Act (MSPA).

WHD issued a letter indicating that an investigation had disclosed a violation of MSPA that contributed to the serious injury of a worker. 

This is a serious violation because a violation of MSPA is serious if it caused or contributed to the 

death or serious injury of one or more workers. Conversely, if WHD issued a letter indicated that 

the investigation had disclosed that 3 of the 50 MSPA workers at a job site did not receive their 

wages when due, and those wages totaled $1,000 and the civil monetary penalties totaled $500, 

the violation would not be serious, assuming that none of the other criteria for seriousness listed 

above are met. 

National Labor Relations Act (NLRA) ........ The General Counsel of the National Labor Relations Board (NLRB) issued a complaint alleging that 

the contractor fired the employee who was the lead union adherent during the union’s organizational campaign. 

This is a serious violation because a violation of any of the Labor Laws is serious where the contractor or subcontractor engaged in an adverse employment action (including discharge, refusal to 

hire, suspension, demotion, or threat) or is responsible for unlawful harassment against one or 

more workers for exercising any right protected by any of the Labor Laws. Conversely, if the 

NLRB’s complaint had instead alleged that the contractor had, for example, denied a single employee a collectively-bargained benefit (for example, a vacation to which the employee was entitled based on her seniority), the violation would not be serious, assuming that none of the other 

criteria for seriousness listed above are met. 

Davis-Bacon Act (DBA) ............................. WHD issued a letter indicating that a contractor violated the DBA, and that back wages were due in 

the amount of $12,000. The contractor had previously been investigated by WHD and, to resolve 

that investigation, had entered into a written agreement to pay the affected workers prevailing 

wages as required by the DBA. 


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Labor law Example of serious violation 

This is a serious violation for two reasons. First, a violation of any of the Labor Laws is serious if 

back wages of at least $10,000 were due. Second, a violation of any of the Labor Laws is serious 

if the contractor or subcontractor breached the material terms of any agreement or settlement entered into with an enforcement agency. Conversely, if WHD issued a letter indicating that a contractor owed several workers a total of $8,000, and the contractor’s conduct did not constitute a 

breach of a prior agreement or meet any of the other criteria for seriousness listed above, the violation would not be serious. 

Service Contract Act (SCA) ....................... An ALJ issued an order finding a food service company violated the SCA by failing to provide the 

required amount of health and welfare benefits to 35 of its 100 workers at a particular location. 

The order included a finding that the contractor interfered with WHD’s investigation by threatening 

to fire workers who spoke to WHD investigators. 

This is a serious violation for two reasons. First, a violation of any any of the Labor Laws is serious 

if the affected workers comprise 25% or more of the workforce at the worksite. Second, a violation of any of the Labor Laws is serious where the findings of the relevant enforcement agency, 

court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor interfered with the enforcement agency’s investigation. Conversely, if the ALJ’s order had indicated 

that the contractor owed back wages to only 10 of the 100 SCA-covered workers at the location, 

and did not contain a finding of interference, the violation would not be serious, assuming that 

none of the other criteria for seriousness listed above are met. 

Executive Order 11246 (Equal Employment Opportunity).OFCCP issued a show cause notice indicating that an investigation had disclosed that a contractor 

had discriminated against African-American and Hispanic job seekers in violation of EO 11246. 

OFCCP had determined that back wages were due to job applicants in an amount upwards of 

$50,000. The contractor subsequently settled the case with OFCCP for a total of $30,000 in back 

wages. 

This is a serious violation for two reasons. First, a violation of any of the Labor Laws is serious if 

findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor engaged in a pattern or practice of discrimination or systemic discrimination. Second, a violation of any of the Labor Laws is serious if back wages of at 

least $10,000 were due. Conversely, if OFCCP issued a show cause notice indicating that the investigation disclosed that the contractor had discriminated against only a few such job seekers, 

and the amount of back wages due was only $9,000, the violation would not be serious, assuming that none of the other criteria for seriousness listed above are met. 

Section 503 of the Rehabilitation Act ........ The ARB affirmed an ALJ order directing the contractor to change a practice of medical screenings 

that discriminated against job applicants with disabilities—and that were not job-related or consistent with business necessity—in violation of Section 503. 

This is a serious violation for two reasons. First, a violation of any of the Labor Laws is serious if injunctive relief is imposed by an enforcement agency or court. Second, a violation of any of the 

Labor Laws is serious if the findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor engaged in a pattern or practice of discrimination or systemic discrimination. Conversely, if the ARB had found that the contractor’s practice of medical screenings was generally not discriminatory, but that the contractor 

had discriminated against two specific disabled job applicants in another fashion, and the ARB did 

not order the contractor to take any specific actions, the violation would not be serious, assuming 

that none of the other criteria for seriousness listed above are met. 

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).OFCCP issued a show cause notice indicating that an investigation had disclosed that a contractor 

had discriminated against a veteran job applicant, and that back wages were due to the job applicant in an amount upwards of $10,000. 

This is a serious violation because a violation of any of the Labor Laws is serious if back wages of 

at least $10,000 were due. Conversely, if OFCCP had determined that the job applicant was due 

only $5,000 in back wages, the violation would not be serious, assuming that none of the other 

criteria for seriousness listed above are met. 

Family and Medical Leave Act (FMLA) ..... The Secretary of Labor filed a complaint in federal court after an investigation found that a contractor fired a worker in retaliation for taking FMLA leave. 

This is a serious violation because a violation of any of the Labor Laws is serious where the contractor or subcontractor engaged in an adverse employment action (including discharge, refusal to 

hire, suspension, demotion, or threat) or is responsible for unlawful harassment against one or 

more workers for exercising any right protected by any of the Labor Laws. Conversely, had the 

Secretary filed a complaint in federal court alleging that a contractor improperly denied an employee two weeks of FMLA leave but did not take any adverse employment action against the 

employee, the violation would not be serious, assuming that none of the other criteria for seriousness listed above are met. 

Title VII of the Civil Rights Act of 1964 ..... The EEOC filed a complaint in federal court after an investigation found that the contractor engaged 

in a pattern or practice of discrimination under Title VII. 

This is a serious violation because a violation of any of the Labor Laws is serious if the findings of 

the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the 

contractor or subcontractor engaged in a pattern or practice of discrimination or systemic discrimination. Conversely, had the EEOC’s complaint alleged that the contractor discriminated against 

only a single individual, the violation would not be serious, assuming that none of the other criteria for seriousness listed above are met. 

Americans with Disabilities Act of 1990 

(ADA).

In a private action under the ADA brought in federal district court, the court issued injunctive relief to 

the plaintiff, ordering the contractor to cease violating the ADA, to rehire the plaintiff, and to provide the plaintiff a reasonable accommodation for her disability. 


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Labor law Example of serious violation 

This is a serious violation because a violation of any of the Labor Laws is serious if injunctive relief 

is imposed by an enforcement agency or court. Conversely, had the court’s relief been limited to 

an award of damages, the violation would not be serious, assuming that none of the other criteria 

for seriousness listed above are met. 

Age Discrimination in Employment Act of 

1967 (ADEA).

In a private action brought in federal district court, the factfinder found that the contractor unlawfully 

discriminated against the plaintiff on the basis of age when it discharged the plaintiff. The court 

awarded back wages of $50,000 to the plaintiff. 

This is a serious violation because a violation of any of the Labor Laws is serious if back wages of 

at least $10,000 were due. Conversely, had the court awarded only $8,000 in back wages, the 

violation would not be serious, assuming that none of the other criteria for seriousness listed 

above are met. 

Executive Order 13658 (Minimum Wage 

for Contractors).

WHD issued an investigative findings letter indicating that an investigation disclosed a violation of 

Executive Order 13658 and finding that a total of $15,000 in back wages are due. 

This is a serious violation because a violation of any of the Labor Laws is serious if back wages of 

at least $10,000 were due. Conversely, had WHD’s investigative findings letter indicated that only 

$1,500 in back wages were due, the violation would not be serious, assuming that none of the 

other criteria for seriousness listed above are met. 

Appendix B: Examples of Willful Violations 

All violations of federal labor laws are serious, but in the context of Executive Order 13673, Fair Pay and Safe Workplaces, the Department of 

Labor has identified certain violations as ‘‘serious,’’ ‘‘willful,’’ ‘‘repeated,’’ and ‘‘pervasive.’’ This subset of all labor violations represents the violations that are most concerning and bear on the assessment of a contractor or subcontractor’s integrity and business ethics. The Department 

has purposely excluded from consideration violations that could be characterized as inadvertent or minimally impactful. Ultimately, each contractor’s disclosed violations of Labor Laws will be assessed on a case-by-case basis in light of the totality of the circumstances, including the 

severity of the violation or violations, the size of the contractor, and any mitigating factors. In most cases, even for violations subject to disclosure and consideration under the Order, a single violation of one of the Labor Laws will not give rise to a determination of lack of responsibility. 

The chart below includes a non-exhaustive list of examples of Labor Laws violations that may be found to be ‘‘willful’’ under the Department’s 

proposed guidance for Executive Order 13673. These are examples only: They are not minimum requirements, nor are they exclusive of 

other violations under each Labor Law that may be willful. The chart does not include violations of ‘‘equivalent state laws,’’ which are also 

covered by the Order, but (with the exception of OSHA State Plans, which are addressed in the current proposed guidance) will be addressed in future guidance. 

Summary of Definition of ‘‘Willful Violation’’ 

The full definition of a ‘‘willful violation’’ is set forth in section III.B of the Department of Labor’s proposed guidance. When evaluating violations, 

Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, should refer to the full definition in the 

guidance. 

In summary, the guidance provides that a violation of one of the Labor Laws is willful if: 

• For purposes of a citation issued pursuant to the Occupational Safety and Health (OSH) Act or an OSHA-approved State Plan, the citation at issue was designated as willful or any equivalent State designation (i.e., ‘‘knowing’’), and the designation was not subsequently 

vacated; 

• For purposes of the Fair Labor Standards (including the Equal Pay Act), the administrative merits determination sought or assessed back 

wages for greater than two years or sought or assessed civil monetary penalties for a willful violation, or there was a civil judgment or arbitral award or decision finding the contractor or subcontractor liable for back wages for greater than two years or affirming the assessment of civil monetary penalties for a willful violation; 

• For purposes of the Age Discrimination in Employment Act (ADEA), the enforcement agency, court, arbitrator, or arbitral panel assessed 

or awarded liquidated damages; 

• For purposes of Title VII or the Americans with Disabilities Act, the enforcement agency, court, arbitrator, or arbitral panel assessed or 

awarded punitive damages for a violation where the contractor or subcontractor engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual; or 

• For purposes of any of the other Labor Laws, the findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a 

conclusion that the contractor or subcontractor knew that its conduct was prohibited by any of the Labor Laws or showed reckless disregard for, or acted with plain indifference to, whether its conduct was prohibited by one or more requirements of the Labor Laws. 

When evaluating Labor Laws violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, 

will review all of the above criteria to determine whether a violation is willful. The examples below are intended to illustrate how these criteria 

may arise in different contexts, but a violation will be willful if it meets any of the above criteria. 

Labor law Example of willful violation 

Fair Labor Standards Act (FLSA) .............. In a private lawsuit under the FLSA, a federal district court issued an order requiring payment of 

three years of back wages after finding that a contractor willfully violated the FLSA overtime regulations by paying workers for 40 hours by check and then paying them in cash at a straight-time 

rate for hours worked over 40. 

This is a willful violation because FLSA violations are willful under the Order if back wages for greater than two years are assessed. Conversely, if the court had ordered the payment of back wages 

for only two years, the violation would not be willful under the Order. 

WHD finds that a contractor employed a 13-year-old child to operate a forklift. In recognition of the 

contractor’s reckless disregard of its obligations under child labor laws, WHD assesses the contractor civil monetary penalties for the violation. 


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Labor law Example of willful violation 

This is a willful violation because civil monetary penalties were assessed on the grounds that the 

violation was willful under the FLSA. Conversely, if, for example, WHD had found that a contractor had inadvertently allowed a 15-year-old, who was about to turn 16 years old, to work as a 

file clerk during school hours, and WHD did not assess any civil monetary penalties, the violation 

would not be willful under the Order. 

Occupational Safety and Health (OSH) 

Act.

The Indiana Commissioner of Labor issued a Safety Order finding that a refinery committed a 

‘‘knowing’’ violation of the Indiana Occupational Safety and Health Act (an OSHA State Plan) by 

failing to properly train truck drivers in a propane loading system, which resulted in an explosion. 

This is a willful violation because all citations designated as willful by OSHA—or equivalent state 

documents designated similarly (e.g., as ‘‘knowing’’) by an OSHA State Plan—are willful under 

the Order. Conversely, had the Safety Order not designated the violation as willful or some other 

equivalent state designation, the violation would not be willful under the Order. 

Migrant and Seasonal Agricultural Worker 

Protection Act (MSPA).

An ALJ issued an order finding that the contractor was warned by an official from WHD that the 

housing the contractor was providing to migrant and seasonal agricultural workers did not comply 

with required safety and health standards and that the contractor then failed to make the required 

repairs or corrections. 

This is a willful violation because the findings of the ALJ support a conclusion that the contractor 

knew, based on the warning of the WHD official, that its conduct was prohibited by law, yet continued to engage in the prohibited conduct. Conversely, if, for example, the ALJ’s findings indicated that the contractor did not receive any warning from WHD and, after making a reasonable 

inquiry into its legal obligations, believed in good faith that its housing was fully in compliance with 

the relevant standards, the violation would not be willful under the Order. 

National Labor Relations Act (NLRA) ........ The NLRB issued a decision finding that a unionized roofing contractor set up a non-union alter ego 

corporation to avoid paying its employees the wages and benefits provided in its contract with the 

union. 

This is a willful violation because the NLRB’s finding that the contractor formed the alter ego corporation supports a conclusion that the employer was aware of its requirements under the NLRA, 

yet engaged in the prohibited conduct anyway. Conversely, had the contractor, for example, inadvertently failed to pay its workers the benefits specified in its contract because a human resources 

specialist had incorrectly calculated the workers’ seniority, the violation would not be willful. 

Davis-Bacon Act (DBA) ............................. An ALJ order affirming a violation of the DBA included a finding that the contractor manipulated payroll documents to make it appear as if it had paid workers the required prevailing wages. 

This is a willful violation because the findings of the ALJ support a conclusion that the contractor 

knew that its conduct was prohibited by the DBA. The ALJ’s finding that documents were falsified 

indicates that the contractor knew that it was required to pay the workers prevailing wages, yet 

paid them less anyway. Conversely, had the contractor, for example, failed to pay certain workers 

prevailing wages because of a good-faith misunderstanding about the workers’ proper classification for the purpose of DBA wage determinations, the violation would not be willful. 

Service Contract Act (SCA) ....................... The DOL’s Administrative Review Board (ARB) affirmed WHD’s determination that a contractor violated the SCA. The order included a finding that the contractor documented the wages as paid, 

but required the workers to kick back a portion of their wages to the contractor. 

This is a willful violation because the findings of the ARB support a conclusion that the contractor 

knew that its conduct was prohibited by the SCA. The finding that the contractor required the 

workers to kick back wages paid indicates that the contractor knew that it was required to pay the 

workers prevailing wages, yet paid them less anyway. Conversely, had the ARB found, for example, that employees were not paid their required SCA wages because the contractor’s payroll system, due to a systems error, failed to include the most up-to-date SCA wage determinations, the 

violation would not be willful. 

Executive Order 11246 (Equal Employment Opportunity).An ALJ decision found that a contractor’s vice president knew that federal law prohibits discrimination on the basis of gender, but had a policy of not promoting women to managerial positions. 

This is a willful violation because the findings of the ALJ support a conclusion that the contractor 

knew that its discrimination was prohibited by law, but engaged in the conduct anyway. Conversely, had the contractor used a neutral procedure for selecting employees for promotion and 

validated this procedure in accordance with OFCCP regulations, but the procedure was ultimately 

determined by the ALJ to be discriminatory on the basis of gender because the contractor did not 

fully comply with validation requirements, the violation would not be willful. 

Section 503 of the Rehabilitation Act ........ An ARB decision found that a contractor refused to hire any individuals with physical disabilities, 

and that in doing so, the contractor made no attempt whatsoever to determine whether any of 

these individuals’ disabilities would affect their abilities to do the jobs for which they applied. 

This is a willful violation because the findings of the ARB support a conclusion that the contractor 

acted in reckless disregard of its obligations under Section 503 of the Rehabilitation Act. Conversely, had the ARB found that the contractor made good-faith efforts to determine whether the 

applicants’ disabilities affected their abilities to do the jobs for which they applied, but submitted 

insufficient evidence to support its claim that accommodations would impose an undue burden, 

the violation would not be willful. 

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).An ALJ decision finding hiring discrimination in violation of VEVRAA made a factual finding that 

each time a veteran covered by VEVRAA’s protections applied for a job with a contractor, the reasons cited by the contractor as a basis not to hire that individual were pretextual. 


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Labor law Example of willful violation 

This is a willful violation because the findings of the ALJ support a conclusion that the contractor 

knew that its conduct was prohibited by VEVRAA, yet sought to hide its discriminatory practices 

by creating pretextual reasons for its refusal to hire covered veterans. Conversely, had the contractor used a neutral procedure for selecting employees that the contractor claimed was job-related and consistent with business necessity, but the procedure was ultimately determined by the 

ALJ to be discriminatory against veterans, the violation would not be willful. 

Family and Medical Leave Act (FMLA) ..... After suit in federal district court by a private litigant, the court issued a decision that included findings that the contractor’s employee handbook provided for unpaid leave to employees with serious health conditions as required by the FMLA, but that the contractor in practice erected unnecessary hurdles to employees requesting such leave. 

This is a willful violation because the court’s findings support a conclusion that the contractor knew 

of its requirements under the FMLA, yet violated these requirements. Conversely, had the court’s 

decision instead found that the contractor’s actions were based on a good-faith misunderstanding 

of the FMLA’s provisions concerning medical certification, the violation would not be willful. 

Title VII of the Civil Rights Act of 1964 ..... After a federal district court trial finding the contractor liable for sexual harassment, the factfinder assessed punitive damages after finding that the contractor engaged in a discriminatory practice 

with malice or reckless indifference to the federally protected rights of an aggrieved individual because the employer’s anti-harassment policy was ineffective and a manager, after receiving a 

complaint of sexual harassment, failed to report it or investigate it. 

This is a willful violation because Title VII violations are willful under the Order if the enforcement 

agency, court, arbitrator, or arbitral panel assessed or awarded punitive damages for a violation 

where the contractor or subcontractor engaged in a discriminatory practice with malice or reckless 

indifference to the federally protected rights of an aggrieved individual. Conversely, had the district court not awarded any punitive damages, the violation would not be willful. 

Americans with Disabilities Act of 1990 

(ADA).

After a trial in federal court, the factfinder assessed punitive damages after finding that the contractor engaged in an ADA-prohibited discriminatory practice with malice or reckless indifference 

to the federally protected rights of an aggrieved individual, and the contractor could not demonstrate good faith. 

This is a willful violation because ADA violations are willful under the Order if the enforcement agency, court, arbitrator, or arbitral panel assessed or awarded punitive damages for a violation where 

the contractor or subcontractor engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual. Conversely, had the factfinder 

not assessed punitive damages, the violation would not be willful. 

Age Discrimination in Employment Act of 

1967 (ADEA).

An arbitral award included liquidated damages for a willful violation of the ADEA. 

This is a willful violation because ADEA violations are willful under the Order if the enforcement 

agency, court, arbitrator, or arbitral panel assessed or awarded liquidated damages. Conversely, 

had the arbitrator not awarded any liquidated damages, the violation would not be willful. 

Executive Order 13658 (Minimum Wage 

for Contractors).

An ALJ order affirming a violation of Executive Order 13658 included a finding that the employer, an 

experienced and sophisticated government contractor, made no effort whatsoever to determine 

what its minimum wage obligations were or whether its workers were employees or independent 

contractors, but instead chose to pay them a flat fee that fell well short of the requirements of Executive Order 13658. 

This is a willful violation because the ALJ order shows that the contractor made no effort whatsoever to learn or understand whether it was complying with the law, which supports a conclusion 

that the contractor was acting in reckless disregard or plain indifference of its requirements under 

Executive Order 13658. Conversely, if the employer in question was a small business and a new 

federal government contractor and the employer, after reading the regulations implementing Executive Order 13658, mistakenly concluded in good faith that it was not covered by these minimum 

wage requirements, the violation would not be willful. 

Appendix C: Examples of Repeated Violations 

All violations of federal labor laws are serious, but in the context of Executive Order 13673, Fair Pay and Safe Workplaces, the Department of 

Labor has identified certain violations as ‘‘serious,’’ ‘‘willful,’’ ‘‘repeated,’’ and ‘‘pervasive.’’ This subset of all labor violations represents the violations that are most concerning and bear on the assessment of a contractor or subcontractor’s integrity and business ethics. The Department 

has purposely excluded from consideration violations that could be characterized as inadvertent or minimally impactful. Ultimately, each contractor’s disclosed violations of Labor Laws will be assessed on a case-by-case basis in light of the totality of the circumstances, including the 

severity of the violation or violations, the size of the contractor, and any mitigating factors. In most cases, even for violations subject to disclosure and consideration under the Order, a single violation of one of the Labor Laws will not give rise to a determination of lack of responsibility. 

The chart below includes a non-exhaustive list of examples of Labor Laws violations that may be found to be ‘‘repeated’’ under the Department’s proposed guidance for Executive Order 13673. These are examples only: They are not minimum requirements, nor are they exclusive 

of other violations under each Labor Law that may be repeated. The chart does not include violations of ‘‘equivalent state laws,’’ which are 

also covered by the Order, but (with the exception of OSHA State Plans, which are addressed in the current proposed guidance) will be addressed in future guidance. 

Summary of Definition of ‘‘Repeated Violation’’ 

The full definition of a ‘‘repeated violation’’ is set forth in section III.C of the Department of Labor’s proposed guidance. When evaluating violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, should refer to the full definition 

in the proposed guidance. 


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In summary, the guidance provides that a violation of one of the Labor Laws is repeated if it is the same as or substantially similar to one or 

more other violations of the Labor Laws by the contractor or subcontractor. ‘‘Substantially similar’’ does not mean exactly the same; rather, 

two things may be substantially similar where they share essential elements in common. Whether violations fall under the same Labor Law is 

not determinative of whether the requirements underlying those violations are substantially similar; rather, this inquiry turns on the nature of 

the violation and underlying obligation itself. 

The same or substantially similar other violation(s) must be reflected in one or more civil judgments, arbitral awards or decisions, or adjudicated 

or uncontested administrative merits determinations issued within the last three years, and must be the subject of one or more separate investigations or proceedings. Repeated violations may be considered on an enterprise-wide basis; thus, a prior violation by any establishment 

of a multi-establishment enterprise can render subsequent violations repeated, provided the other relevant criteria are satisfied. 

The guidance provides further detail on the meaning of an ‘‘adjudicated or uncontested’’ administrative merits determination, what constitutes a 

‘‘substantially similar’’ violation, and other aspects of the definition. 

When evaluating Labor Laws violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, 

will review the full definition to determine whether a violation is repeated. The examples below are intended to illustrate how the definition 

may be applied in different contexts, but a violation can be deemed repeated as long as it meets the criteria set forth in the guidance. 

Labor law Example of repeated violation 

Fair Labor Standards Act (FLSA) .............. The Wage and Hour Division (WHD) found that a software company violated overtime provisions of 

the FLSA after misclassifying employees at one facility as independent contractors. The company 

did not dispute the violation and agreed to pay back wages by signing a Form WH–56. A year 

later, the Secretary filed a complaint in federal court stating that an investigation of a different facility of the same company disclosed violations of the FLSA minimum wage provision. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an uncontested administrative merits determination. The first violation is ‘‘uncontested’’ 

because the company did not dispute the violation. The violations are substantially similar because even though the first violation involved overtime and the second involved minimum wage, 

both violations involved failure by the same company to pay workers their proper wages. Conversely, had one of the two violations instead involved, for example, the company’s failure to follow the FLSA’s requirements to provide break time for nursing mothers, the violations would not 

be substantially similar and the second violation therefore would not be repeated. 

Occupational Safety and Health (OSH) 

Act.

OSHA issued a citation to a contractor for failing to provide fall protection on a residential construction site. The citation was later affirmed by an administrative law judge (ALJ) at the Occupational 

Safety and Health Review Commission (OSHRC). OSHA later issued a second citation against 

the same contractor for failing to provide fall protection at a commercial construction site. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an adjudicated administrative merits determination. The first citation is an ‘‘adjudicated’’ 

administrative merits determination once it is affirmed by the ALJ, because the contractor had an 

opportunity to contest the citation and present its case before the ALJ. Had the ALJ reversed the 

first citation, the second violation would not be a repeated violation. (Had the employer not contested the first violation at all, it would be an ‘‘uncontested’’ administrative merits determination 

and the second violation would be ‘‘repeated’’ for that reason.) The second violation is substantially similar to the first because even though residential and commercial construction sites have 

different regulatory standards for fall protection, the hazards involved are substantially similar. 

Conversely, had one of the two violations instead involved, for example, the contractor’s failure to 

properly store hazardous materials, the violations would not be substantially similar and the second violation therefore would not be repeated. 

Migrant and Seasonal Agricultural Worker 

Protection Act (MSPA).

A district court issued an order enjoining a farm labor contractor’s practice of requiring workers to 

purchase goods or services solely from a particular company, in violation of MSPA. Later, the 

Wage and Hour Division assessed civil monetary penalties after finding that the farm labor contractor failed to pay MSPA-covered workers their wages when due. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in a civil judgment. Even though the violations are not identical, under MSPA, multiple violations of the statute’s requirements pertaining to wages, supplies, and working arrangements are 

substantially similar. (Likewise, under MSPA, any two violations of any of MSPA’s requirements 

related to health and safety are substantially similar to each other. The same is true for any two 

violations of the statute’s disclosure and recordkeeping requirements, or any two violations related 

to its registration requirements.) Conversely, had the contractor, for example, committed one 

MSPA violation for requiring workers to purchase goods or services solely from a particular company, and a second MSPA violation for failure to comply with MSPA’s transportation safety standards, the violations would not be substantially similar and the second violation therefore would not 

be repeated. 

National Labor Relations Act (NLRA) ........ An National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) issued a decision finding that a contractor violated section 8(a)(3), which prohibits employers from discriminating 

against employees for engaging in or refusing to engage in union activities, by discharging employees who led a union organizational campaign. Two years later, a Regional Director issued a 

complaint under section 8(a)(3) against the same contractor at a different location for discharging 

two union representatives at a plant after they organized a one-day strike to protest low wages. 


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Labor law Example of repeated violation 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an adjudicated administrative merits determination. The first violation is an ‘‘adjudicated’’ 

administrative merits determination because the contractor had an opportunity to contest the violation and present its case before the ALJ. The violations are substantially similar because both 

involved discharges under section 8(a)(3) of the NLRA. Conversely, had one of the two violations 

been a violation of section 8(a)(2), which prohibits an employer from dominating or interfering with 

the formation nor administration of a labor union through financial support or otherwise—for example, had the contractor offered assistance to one union but not to another during an organizational campaign—the two violations would not be substantially similar and the second violation 

would therefore not be repeated. 

Davis-Bacon Act (DBA) ............................. A federal district court granted a preliminary injunction enjoining a contractor from further violations 

of the overtime provisions of the FLSA. Subsequently, WHD sent the contractor a letter finding 

that the contractor violated the DBA by failing to pay workers at a different worksite their prevailing wages. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in a civil judgment. Even though the contractor violated two different statutes, the violations are substantially similar because both involve the practice of failing to pay wages required 

by law. Conversely, had the first violation instead involved, for example, the contractor’s failure to 

provide a reasonable accommodation to an employee with a disability under the ADA, the two 

violations would not be substantially similar and the second violation would therefore not be repeated. 

Service Contract Act (SCA) ....................... The Department’s Administrative Review Board (ARB) issued an order finding that a contractor 

failed to pay workers covered by Executive Order 13658 the minimum wage of $10.10 per hour. 

Subsequently, WHD issued a letter indicating that an investigation disclosed a violation of the 

SCA because the contractor failed to pay service workers their required amount of fringe benefits. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an adjudicated administrative merits determination. The first violation is an ‘‘adjudicated’’ 

administrative merits determination because the contractor had an opportunity to contest the violation and present its case before the ARB. Even though the contractor violated two different 

Labor Laws, the violations are substantially similar because both involve the practice of failing to 

pay wages required by law. Conversely, if the first violation was the subject of a determination by 

the Department’s Wage and Hour Division that the contractor challenged before an ALJ, and the 

ALJ proceeding was still pending at the time of the second violation, the second violation would 

not be a repeated violation because the first violation would not be an adjudicated or uncontested 

administrative merits determination. 

Executive Order 11246 (Equal Employment Opportunity).An arbitrator found that a contractor created a hostile work environment for African-American workers in violation of Title VII. Subsequently, OFCCP issued a show cause notice finding that the 

same contractor failed to comply with the nondiscrimination requirements of Executive Order 

11246 by failing to hire qualified Asian workers. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an arbitral award. These violations are substantially similar because violations of Title 

VII, Section 503, the ADA, the ADEA, the Equal Pay Act, Executive Order 11246, and VEVRAA 

are substantially similar when they involve the same or an overlapping protected status. In this 

case, both violations involved discrimination on the basis of race. Conversely, if the first violation 

had instead involved discrimination by the contractor on the basis of gender, the two violations 

would not be substantially similar and the second violation would therefore not be repeated. 

Section 503 of the Rehabilitation Act ........ A federal district court granted a private plaintiff summary judgment in a claim against a contractor 

under the ADA alleging constructive discharge and the failure to provide a reasonable accommodation for the plaintiff’s disability. Subsequently, the ARB affirmed an ALJ order directing the 

same contractor to change a practice of medical screenings that discriminated against job applicants with disabilities in violation of Section 503 of the Rehabilitation Act. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in a civil judgment. These violations are substantially similar because violations of Title VII, 

Section 503, the ADA, the ADEA, the Equal Pay Act, Executive Order 11246, and VEVRAA are 

substantially similar when they involve the same or an overlapping protected status. In this case, 

both violations involved discrimination on the basis of a disability. Conversely, if the first violation 

had instead involved the contractor’s failure to provide a reasonable accommodation of an employee’s religious beliefs under Title VII, the two violations would not be substantially similar and 

the second violation would therefore not be repeated. 

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).An ALJ issued an order finding that the contractor violated VEVRAA by discriminating against protected veterans during the hiring process. Subsequently, in a separate compliance evaluation, 

OFCCP issued a show cause notice indicating that the same contractor failed to promote employees who were protected veterans to higher-level positions. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an adjudicated administrative merits determination. The first violation is an ‘‘adjudicated’’ 

administrative merits determination because the contractor had an opportunity to contest the violation and present its case before the ALJ. These violations are substantially similar because violations of Title VII, Section 503, the ADA, the ADEA, the Equal Pay Act, Executive Order 11246, 

and VEVRAA are substantially similar when they involve the same or an overlapping protected 

status. In this case, both violations involved discrimination on the basis of protected veterans’ status. Conversely, if the first violation had instead involved discrimination on the basis of race under 

Executive Order 11246, the two violations would not be substantially similar and the second violation would therefore not be repeated. 


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Labor law Example of repeated violation 

Family and Medical Leave Act (FMLA) ..... A court found that a contractor had failed to reinstate an employee to the same or an equivalent position after the employee took FMLA leave. Subsequently, the Wage and Hour Division, after an 

investigation, filed suit against the employer challenging the employer’s denial of another employee’s request for FMLA leave. 

The second violation is repeated because it is substantially similar to a prior violation that was reflected in a civil judgment. Although the violations are not identical, under the FMLA, any two violations would generally be considered substantially similar to each other, with the exception of violations of the notice requirements. Conversely, had the first violation involved the contractor’s failure to provide notice to employees of their FMLA rights and the second involved either denial of 

leave or failure to reinstate an employee, the two violations would not be substantially similar and 

the second violation would therefore not be repeated. 

Title VII of the Civil Rights Act of 1964 ..... OFCCP issued a show cause notice finding that the contractor violated Executive Order 11246 by 

systemically paying women at one of its locations less than similarly situated men. The contractor 

did not contest the show cause notice and eventually settles the matter. Subsequently, the EEOC 

issued a letter of determination that reasonable cause existed to believe that the same contractor 

had engaged in unlawful harassment against women at another one of its locations. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an uncontested administrative merits determination. The first violation is ‘‘uncontested’’ 

because the company did not dispute the violation. These violations are substantially similar because violations of Title VII, Section 503, the ADA, the ADEA, the Equal Pay Act, Executive Order 

11246, and VEVRAA are substantially similar when they involve the same protected status. In this 

case, both violations involved discrimination on the basis of gender. Conversely, if the contractor 

had challenged the first notice before an ALJ and if the proceeding was still pending at the time of 

the second violation, the second violation would not be a repeated violation because the first violation would not be an adjudicated or uncontested administrative merits determination. 

Americans with Disabilities Act of 1990 

(ADA).

The ARB affirmed an ALJ order under Section 503 of the Rehabilitation Act directing the contractor 

to grant reasonable accommodations to employees with visual impairments. Subsequently, a federal district court granted a private plaintiff summary judgment in her ADA claim of constructive 

discharge. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an adjudicated administrative merits determination. The first violation is an ‘‘adjudicated’’ 

administrative merits determination because the contractor had an opportunity to contest the violation and present its case before the ALJ. These violations are substantially similar because violations of Title VII, Section 503, the ADA, the ADEA, the Equal Pay Act, Executive Order 11246, 

and VEVRAA are substantially similar when they involve the same protected status. In this case, 

both violations involved discrimination on the basis of a disability. Conversely, had one of the two 

violations involved, for example, failure to grant FMLA leave to an employee for birth of a child, 

the two violations would not be substantially similar and the second violation would therefore not 

be repeated. 

Age Discrimination in Employment Act of 

1967 (ADEA).

An arbitrator found that a contractor violated the ADEA by constructively discharging several employees over the age of 60. Subsequently, in an ADEA private action brought in federal district 

court, the court found that the contractor unlawfully discriminated against the plaintiff on the basis 

of age when it failed to hire him. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in an arbitral award. These violations are substantially similar because violations of Title 

VII, Section 503, the ADA, the ADEA, the Equal Pay Act, Executive Order 11246, and VEVRAA 

are substantially similar when they involve the same protected status. In this case, both violations 

involved discrimination on the basis of age. Conversely, had one of the two violations involved, for 

example, discrimination on the basis of the employee’s status as a protected veteran, the two violations would not be substantially similar and the second violation would therefore not be repeated. 

Executive Order 13658 (Minimum Wage 

for Contractors).

In a private action, a federal court of appeals affirmed a finding that the contractor was liable for failing to pay wages due under the FLSA. Subsequently, WHD issued an Investigative Findings Letter stating that an investigation disclosed a violation of Executive Order 13658. 

The second violation is a repeated violation because it is substantially similar to a prior violation reflected in a civil judgment. Even though the contractor violated two different Labor Laws, the violations are substantially similar because both involve the practice of failing to pay wages required 

by law. Conversely, had one of the two violations involved, for example, the contractor’s violation 

of the OSH Act for failure to properly abate workplace hazards, the two violations would not be 

substantially similar and the second violation would therefore not be repeated. 

Appendix D: Examples of Pervasive Violations 

All violations of federal labor laws are serious, but in the context of Executive Order 13673, Fair Pay and Safe Workplaces, the Department of 

Labor has identified certain violations as ‘‘serious,’’ ‘‘willful,’’ ‘‘repeated,’’ and ‘‘pervasive.’’ This subset of all labor violations represents the violations that are most concerning and bear on the assessment of a contractor or subcontractor’s integrity and business ethics. The Department 

has purposely excluded from consideration violations that could be characterized as inadvertent or minimally impactful. Ultimately, each contractor’s disclosed violations of Labor Laws will be assessed on a case-by-case basis in light of the totality of the circumstances, including the 

severity of the violation or violations, the size of the contractor, and any mitigating factors. In most cases, even for violations subject to disclosure and consideration under the Order, a single violation of one of the Labor Laws will not give rise to a determination of lack of responsibility. 


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The chart below includes a non-exhaustive list of examples of Labor Laws violations that may be found to be ‘‘pervasive’’ under the Department’s proposed guidance for Executive Order 13673. These are examples only: they are not minimum requirements, nor are they exclusive 

of other violations under each Labor Law that may be pervasive. The chart does not include violations of ‘‘equivalent state laws,’’ which are 

also covered by the Order, but (with the exception of OSHA State Plans, which are addressed in the current proposed guidance) will be addressed in future guidance. 

Summary of Definition of ‘‘Pervasive Violation’’ 

The full definition of a ‘‘pervasive violation’’ is set forth in section III.D of the Department of Labor’s proposed guidance. When evaluating violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, should refer to the full definition 

in the proposed guidance. 

In summary, the guidance provides that violations of the Labor Laws are ‘‘pervasive’’ if they reflect a basic disregard by the contractor or subcontractor for the Labor Laws as demonstrated by a pattern of serious or willful violations, continuing violations, or numerous violations. Violations must be multiple to be pervasive, although the number of violations necessarily depends on the size of the contractor or subcontractor, 

because larger employers, by virtue of their size, are more likely to have multiple violations. To be pervasive, the violations need not be of the 

same or similar requirements of the Labor Laws. Pervasive violations may exist where the contractor or subcontractor commits multiple violations of the same Labor Law, regardless of their similarity, or violations of more than one of the Labor Laws. This category is intended to 

identify those contractors and subcontractors whose numerous violations of Labor Laws indicate that they may view sanctions for their violations as merely part of the ‘‘cost of doing business,’’ an attitude that is inconsistent with the level of responsibility required by the FAR. 

When evaluating Labor Laws violations, Labor Compliance Advisors and contracting officers, and contractors when evaluating subcontractors, 

will review the full definition to determine whether a violation is pervasive. Additionally, Labor Compliance Advisors, and contractors evaluating subcontractors, are strongly encouraged to consult with the Department of Labor when determining whether violations are pervasive. 

The examples below are intended to illustrate how the definition may be applied in different contexts, but a violation can be deemed pervasive as long as it meets the criteria set forth in the guidance. 

Examples of Pervasive Violations (not specific to any particular statute) 

A medium-sized company that provides janitorial services at federal facilities was found to have violated the SCA for failure to pay workers their 

required wages, Title VII for discrimination in hiring on the basis of national origin, the NLRA for demoting workers who are seeking to organize a union, and the FMLA for denying workers unpaid leave for serious health conditions. 

These violations are pervasive because while the violations are substantively different from each other, a medium-sized employer that violates 

so many Labor Laws is demonstrating a basic disregard for its legal obligations to its workers and is committing pervasive violations. 

A 100-employee IT consulting company was found to have violated EO 11246 for systematically failing to promote women to managerial positions, the FLSA for failing to pay workers overtime after misclassifying them as independent contractors, and the ADEA for constructively discharging employees who were age 60 or over. 

These violations are pervasive because while substantively different from each other, a small employer that violates Labor Laws to this degree 

is demonstrating a basic disregard for its legal obligations to its workers and is committing pervasive violations. 

The Wage and Hour Division issued several Form WH–103 ‘‘Employment of Minors Contrary to The Fair Labor Standards Act’’ notices finding 

that a clothing manufacturer that provides custom-made uniforms for federal employees employed numerous underage workers in violation of 

the child labor provisions of the FLSA. Despite receiving these notices, the contractor failed to make efforts to change its practices and continued to violate the FLSA’s child labor provisions repeatedly. 

These violations are pervasive because they are a series of repeated violations in which the contractor, despite knowledge of its violations and 

several repeated notices from WHD, failed to make efforts to change its practices and continued to violate the law repeatedly. 

OSHA cited a small tools manufacturer with a single location multiple times for a variety of serious violations in the same investigation—once 

for improper storage of hazardous materials, once for failure to provide employees with protective equipment, once for inadequate safeguards 

on heavy machinery, once for lack of fall protection, once for insufficient ventilation, once for unsafe noise exposure, and once for inadequate 

emergency exits. The manufacturer does not have a process for identifying and eliminating serious health hazards. 

These violations are pervasive because such a high number of serious workplace safety and health violations relative to the size of a small 

company with only a single location and the lack of an effective process to identify and eliminate serious violations (hazards) in its workplace 

constitute basic disregard by the contractor for worker safety and health. Even though these violations would not be ‘‘repeated’’ because they 

arose during the same investigation and because they do not involve substantially similar hazards, they would be considered pervasive. 

An ALJ at OSHRC found that although the chief safety officer at a chemical plant fielded complaints from workers about several unsafe working 

conditions, he failed to take action to remedy the unsafe conditions, resulting in numerous willful OSH Act violations. 

These violations are pervasive because the dangerous working conditions were willfully sanctioned by a high-level company official and were 

evident throughout the chemical plant. When Labor Laws are violated with either the explicit or implicit approval of higher-level management, 

such approval signals that future violations will be tolerated or condoned, and may dissuade workers from reporting violations or raising complaints. Such violations also indicate that the company does not voluntarily eliminate hazards, but instead views penalties for such violations 

as ‘‘the cost of doing business,’’ rather than as indicative of significant threats to its workers’ health and safety that must be addressed. Thus, 

to the extent that higher-level management officials were involved in violations themselves, or knew of violations and failed to have an effective process to identify and correct serious violations in their workplace, the violations are more likely to be deemed pervasive. 

A large company that provides laundry services to military bases in several states is cited 50 times for serious OSHA violations over the span of 

one year. The violations affect most of its locations, and a number of the citations are for high gravity serious failures to abate dangerous 

conditions that OSHA had cited previously. As a result, the company is placed on OSHA’s Severe Violator Enforcement Program. 

These violations are pervasive, notwithstanding the large size of the contractor, because the sheer number of high gravity serious violations 

over such a short period of time is evidence that the company is ignoring persistent threats to workers’ safety, fails to treat safety as a serious problem, and is acting in disregard of its legal obligations. Conversely, if the violations affected only a few of the company’s facilities, or if 

the company had acted quickly to abate any violations, the violations might not necessarily be considered pervasive. 

A federal district court decision in a class-action lawsuit included a finding that the vice president of a construction company directed a foreman 

not to hire Native American workers, and as a result, the company is found to have committed numerous Title VII violations against job applicants. 

These violations are pervasive because a high-level company official actively participated in the discriminatory conduct, resulting in numerous 

violations. Even though these violations would not be ‘‘repeated’’ because they arose during the same proceeding, they would be considered 

pervasive. While violations must be multiple to be pervasive, a single liability determination in a class proceeding may be considered ‘‘multiple’’ violations for a determination of pervasiveness. 


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While a union was conducting an organizational campaign at a large manufacturer, the contractor held several captive-audience speeches for 

all of its workers at each of its factories for an extended period of time, threatening the workers with disciplinary measures if they voted to join 

the union in violation of the National Labor Relations Act (NLRA). In addition, the Wage and Hour Division finds that the company failed to 

pay overtime to its workers at the vast majority of its locations in violation of the Fair Labor Standards Act. 

These violations are pervasive, notwithstanding the large size of the contractor, because the contractor committed multiple serious violations affecting significant numbers of its workers. Conversely, if the contractor made its threatening remarks to only a few of its workers, or if the 

overtime violations only existed at a few of the contractor’s locations, the violations might not necessarily be considered pervasive. 

The Department of Labor’s Office of Federal Contract Compliance Programs finds, through enterprise-wide enforcement, that a large contractor 

that provides food services at federal agencies nationwide used pre-employment screening tests for most jobs at the company’s facilities that 

resulted in Hispanic workers being hired at a significantly lower rate than non-Hispanic workers over a 5-year period. In addition, the Wage 

and Hour Division finds that the company failed to comply with the Service Contract Act’s requirements to pay its workers prevailing wages at 

many of its locations. 

These violations are likely pervasive, notwithstanding the large size of the contractor, because the contractor’s numerous serious violations 

spanned most of its locations and affected many of its workers. Conversely, had the company engaged in these prohibited practices at only a 

few of its locations, such violations might not necessarily be considered pervasive. 

Appendix E: Assessing Violations of the Labor Laws 

Appendices A through D provide summary definitions and examples of Labor Laws violations that are ‘‘serious,’’ ‘‘willful,’’ ‘‘repeated,’’ and ‘‘pervasive’’ under Executive Order 13673, Fair Pay and Safe Workplaces. A Labor Compliance Advisor and contracting officer, or contractor 

when evaluating subcontractors, will determine whether violations reported under the Order fit into these categories, which represent the violations that are most concerning and bear on an assessment of a contractor or subcontractor’s integrity and business ethics. The contracting 

officer with the assistance of the Labor Compliance Advisor, or the contractor when evaluating subcontractors, will then assess a contractor 

or subcontractor’s serious, willful, repeated, and pervasive violations in determining whether the contractor or subcontractor is a responsible 

source with a satisfactory record of integrity and business ethics. 

Each contractor or subcontractor’s disclosed violations will be assessed on a case-by-case basis in light of the totality of the circumstances, including the severity of the violation or violations, the size of the contractor, and any mitigating factors. The extent to which a contractor or 

subcontractor has remediated violations of Labor Laws, including agreements entered into by contractors or subcontractors with enforcement 

agencies, will be given particular weight in this regard. 

In most cases, even for violations subject to disclosure and consideration under the Order, a single violation of one of the Labor Laws will not 

give rise to a determination of lack of responsibility. In contrast, pervasive violations and violations of particular gravity, for example, will in 

most cases result in the need for a Labor Compliance Agreement. 

Violations of Particular Concern 

The following types of violations raise particular concerns regarding the contractor’s or subcontractor’s compliance with the Labor Laws: 

• Pervasive violations. Pervasive violations, by definition, demonstrate a basic disregard for the Labor Laws. Such disregard of legal obligations creates a heightened danger that the contractor or subcontractor may, in turn, disregard its contractual obligations as well. Additionally, such contractors and subcontractors are more likely to violate the Labor Laws in the future, and those violations—and any enforcement proceedings or litigation that may ensue—may imperil their ability to meet their obligations under a contract. The fact that a 

contractor or subcontractor shows such disregard for the Labor Laws is highly probative of whether the contractor or subcontractor lacks 

integrity and business ethics. 

• Violations that are serious AND repeated, serious AND willful, or willful AND repeated. A violation that falls into two or more these categories, as a general matter, is more likely to be probative of the contractor’s or subcontractor’s lack of integrity and business ethics than 

a violation that falls into only one of those categories. 

• Violations that are reflected in final orders. To the extent that the judgment, determination, or order finding a Labor Law violation is final 

(because appeals and opportunities for further review have been exhausted or were not pursued), the violation should be given greater 

weight. Likewise, where a violation has not resulted in a final judgment, determination, or order, it should be given lesser weight. 

• Violations of particular gravity. Certain Labor Laws violations that are serious under the Order should be given greater weight, including: 

Æ Violations related to the death of an employee; 

Æ Violations involving a termination of employment for exercising a right protected under the Labor Laws; 

Æ Violations that detrimentally impact the working conditions of all or nearly all of the workforce at a worksite; and 

Æ Violations where the amount of back wages, penalties, and other damages awarded is greater than $100,000. 

Mitigating Factors 

Various factors may mitigate the existence of a contractor or subcontractor’s Labor Laws violations. The Department respects the fact that most 

employers endeavor to comply with the Labor Laws. The Department values highly contractors’ and subcontractors’ good-faith efforts to comply, and it encourages them to report these efforts, including workplace policies that foster compliance. The following are the most common 

factors that will mitigate the existence of one or more violations in the context of a responsibility determination. This list is not exclusive, and 

contractors and subcontractors are encouraged to report any factors they believe may mitigate the existence of a violation: 

• Remediation of the violation(s), including Labor Compliance Agreements: Typically the most important factor that can mitigate the existence of a violation, remediation is an indication that a contractor or subcontractor has assumed responsibility for a violation and has 

taken steps to bring itself into compliance with the law going forward. In most cases, for remediation to be considered mitigating, it 

should involve two components: 

Æ Correction of the violation: The remediation should correct the violation itself, including by making any affected workers whole. For 

example, this could involve abating a dangerous hazard, paying workers their back wages owed, or reinstating a wrongfully discharged employee. 

Æ Efforts to prevent similar violations in the future: For example, if a contractor or subcontractor improperly misclassified workers as 

exempt from the FLSA and pays any back wages due to the workers without reviewing its classifications of the workers going forward, it will likely commit similar violations in the future. Particular consideration will be given where the contractor or subcontractor 

has implemented remediation on an enterprise-wide level or has entered into an enhanced settlement agreement with the relevant 

enforcement agency or agencies that goes beyond what is minimally required under the law to address appropriate remedial or compliance measures. 


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One specific type of remediation is a Labor Compliance Agreement, which is an agreement entered into between an enforcement agency 

and a contractor or subcontractor to address appropriate remedial measures, compliance assistance, steps to resolve issues to increase 

compliance with labor laws, or other related matters. A Labor Compliance Agreement is an important mitigating factor because it indicates that the contractor or subcontractor recognizes the importance that the Federal Government places on compliance with the Labor 

Laws. 

• Only one violation: In most cases, a single violation of a Labor Law may not necessarily give rise to a determination of lack of responsibility, depending on the nature of the violation. However, a contracting agency (or contractor evaluating subcontractors) is not precluded 

from making a determination of non-responsibility based on a single violation in the rare circumstances where it may be merited based 

on the totality of the circumstances. 

• Low number of violations relative to size: Larger employers, by virtue of their size, are more likely to have multiple violations than smaller 

ones. When assessing contractors or subcontractors with multiple violations, a contracting officer and Labor Compliance Advisor (or contractor evaluating subcontractors) should consider the size of the contractor or subcontractor. 

• Safety and health programs or grievance procedures: Implementation of a safety and health management program, such as OSHA’s 

1989 Safety and Health Program Management guidelines or any updates to those guidelines, grievance procedures (including collectively-bargained ones), monitoring arrangements negotiated as part of an enhanced settlement agreement, or other compliance programs 

foster a corporate culture in which workers are encouraged to raise legitimate concerns about Labor Laws violations without the fear of 

repercussions. Such programs and procedures may prompt workers to report violations that would, under other circumstances, go unreported. Therefore, the implementation of such programs or procedures will be considered a mitigating factor, particularly as to violations 

that might otherwise be deemed repeated or pervasive. 

• Recent legal or regulatory change: To the extent that the Labor Laws violations can be traced to a recent legal or regulatory change, that 

may be a mitigating factor. The change must be recent, and the violations must not have been violations but for the change. 

• Good faith and reasonable grounds: It may be a mitigating factor if the contractor or subcontractor shows that it made efforts to ascertain 

its legal obligations and to follow the law, and that its actions under the circumstances were objectively reasonable. For example, if a 

contractor or subcontractor acts in reasonable reliance on advice from a responsible official from the relevant enforcement agency, or an 

administrative or authoritative judicial ruling, such reliance will typically demonstrate good faith and reasonable grounds. This factor may 

also apply where the contractor’s or subcontractor’s legal obligations are unclear, such as when a new statute, rule, or standard is first 

implemented. 

• Significant period of compliance following violations: If, following one or more violations within the three-year reporting period, the contractor or subcontractor maintains a steady period of compliance with the Labor Laws, such compliance may mitigate the existence of 

prior violations (e.g., violations were reported from 21⁄2 years ago and there have been none since). 

[FR Doc. 2015–12562 Filed 5–27–15; 8:45 am] 

BILLING CODE P 


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