Office of Labor Relations 

LABOR RELATIONS LETTERS

 

Date: September 8, 2004 Letter No. LR 2004-02 

SL: Distribution: W-3-1; R-1 (Regional Labor Relations Officers); R-3-1 (RC); R-6, R-6-2; R-7, R-7-2, R-9 

(Labor Relations) 

Subject: Inapplicability of certain Federal labor standards provisions to Public 

Housing Agencies, Indian Tribes, Tribally Designated Housing Entities, 

Indian Housing Authorities and the Department of Hawaiian Homelands 

I. Statutory and regulatory provisions 

II. Contract Work Hours and Safety Standards Act overtime provisions 

III. Davis-Bacon Act weekly wage payments 

IV. Copeland Act (Davis-Bacon) certified payroll reports 

The Department of Housing and Urban Development (HUD) has determined that certain 

Federal labor standards requirements are not applicable to public housing agencies (PHAs), 

Indian tribes, tribally designated housing entities (TDHEs), Indian housing authorities 

(IHAs) and the Department of Hawaiian Homelands (DHHL) when these agencies undertake 

construction or maintenance work with their own employees on projects assisted under the 

U.S. Housing Act of 1937 or the Native American Housing Assistance and SelfDetermination Act of 1996. These exclusions pertain to: 

 Overtime (premium) pay for force account laborers and mechanics; 

 Weekly Davis-Bacon wage payments; and 

 Weekly certified payroll reports. 

Note that the exclusions discussed in this Letter pertain only to these tribal, state and local 

government agencies. The exclusions do not pertain to contractors or subcontractors that are 

engaged by these agencies to perform work subject to Federal prevailing wage and reporting 

requirements. 

 This guidance is provided with the cooperation and advice of the HUD Offices of Public 

and Indian Housing, Native American Programs and General Counsel, and the Department 

of Labor (DOL). 
Page 2 of 4 Letter No. LR 2004-02

I. Statutory and regulatory provisions 

 HUD provides assistance to PHAs, TDHEs, IHAs, and the DHHL through programs 

authorized under the U.S. Housing Act of 1937 (USHA) and the Native American Housing 

Assistance and Self-determination Act of 1996 (NAHASDA), as amended. These programs 

are subject to labor standards provisions requiring the payment of Federal prevailing wage 

rates as determined by the Department of Labor (DOL) pursuant to the Davis-Bacon Act (for 

work defined as development), and as determined or adopted by HUD (for work defined as 

operations).1

 Additionally, the provisions of the Contract Work Hours and Safety Standards 

Act (CWHSSA) may be applicable to development or operations work, and the provisions of 

the Copeland Act may be applicable to development work undertaken pursuant to these 

programs. 

 The USHA and NAHASDA identify the covered classes of workers for prevailing wage 

purposes as “all laborers and mechanics”. However, CWHSSA overtime provisions and 

Copeland Act reporting requirements concern wages paid to laborers and mechanics 

employed by contractors or subcontractors.

 

 DOL regulations implementing the Davis-Bacon and Related Acts, CWHSSA and 

Copeland Act requirements maintain that a state or local government is not regarded as a 

contractor where covered work is performed by its own employees (aka force account).2

 In 

consultation with DOL, HUD has concluded that PHAs, tribes, TDHEs/IHAs and the DHHL 

are agencies that are considered among the excluded units of a state or local government 

(including a tribal government). This exclusion means that certain labor standards 

provisions that are specifically applicable to laborers and mechanics employed by 

contractors and subcontractors are not applicable to laborers and mechanics employed by 

PHAs, tribes, TDHEs/IHAs and the DHHL when these agencies perform work that is subject 

to labor standards under the USHA or NAHASDA. 3 The specific exclusions are discussed 

 

1

 See USHA Section 12(a); and NAHASDA Sections 104(b) and 805(b). However, under the NAHASDA 

Indian Housing Block Grant Program, the requirements for payment of Davis-Bacon and HUD-determined 

prevailing rates do not apply to any contract or agreement for assistance, sale, or lease that is covered by a tribal 

law or regulation requiring payment of not less than prevailing wages, as determined by the Indian tribe. See 

NAHASDA Section 104(b)(3) and ONAP Program Guidance No. 2003-04. This Letter applies where there is 

no such tribal law or regulation. 

2

 See 29 CFR Part 5, Section 5.2(h). 

3

 Note that the USHA and NAHASDA make no distinction between laborers and mechanics employed by 

contractors and subcontractors and force account employees in relation to the workers entitled to prevailing 

wages. Therefore, force account employees are likewise entitled to receive no less than the wages determined 
Page 3 of 4 Letter No. LR 2004-02

in the following paragraphs. 

II. Contract Work Hours and Safety Standards Act overtime provisions

 The provisions of the CWHSSA are applicable to operations and development work 

performed under the USHA and NAHASDA. CWHSSA contains a provision requiring 

premium (time and one-half) pay for overtime hours worked by laborers and mechanics 

employed by contractors and subcontractors. Since PHAs, tribes, TDHEs/IHAs and the 

DHHL are not regarded as contractors, CWHSSA overtime provisions are not applicable to 

these agencies and their force account employees. 

 Accordingly, PHAs, tribes, TDHEs/IHAs and the DHHL may offer force account 

employees compensatory time in lieu of premium pay for overtime hours that may be 

performed on operations or development work. Note that force account employees may be 

otherwise subject to the overtime provisions of the Fair Labor Standards Act (FLSA). 

Compensatory time may be offered to FLSA-covered force account employees to the extent 

permitted under the FLSA. Such agencies should consult with the DOL concerning the 

extent to which force account employees may be covered by FLSA overtime provisions. 

 Note that CWHSSA overtime wage payment requirements remain applicable to 

contractors and subcontractors engaged in operations or development work (where the 

amount of the prime contract is in excess of $100,000). 

 

III. Davis-Bacon Act weekly wage payments

 DOL regulations implementing Davis-Bacon and Related Act (DBRA) prevailing wage 

requirements mandate that contractors and subcontractors pay all laborers and mechanics 

(employed on the DBRA-covered work) not less often than once a week.4

 The USHA and 

NAHASDA require the payment of Davis-Bacon wage rates to all laborers and mechanics 

engaged in development work. However, neither the USHA nor NAHASDA requires 

weekly payment of DBRA wages. Since PHAs, tribes, TDHEs/IHAs and the DHHL are not 

regarded as contractors for the purposes of these regulations, HUD, in consultation with 

DOL, has concluded that the requirement to make wage payments not less often than weekly 

 

to be prevailing pursuant to the Davis-Bacon Act (for development work) and the prevailing wages determined 

or adopted by HUD (for operations work). 

4

 See 29 CFR Part 5, Section 5.5(a)(1)(i). 
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is not applicable to PHAs, tribes, TDHEs/IHAs and the DHHL. These agencies may make 

prevailing wage payments to force account laborers and mechanics with such frequency 

(e.g., bi-weekly, semi-monthly, etc.) as may be permitted under other governing Federal, 

tribal, state or local requirements. 

 Note, again, that the DBRA weekly wage payment requirement remains applicable to 

contractors and subcontractors engaged in development work. 

IV. Copeland Act (Davis-Bacon) certified payroll reports

The Copeland Act and corresponding DOL regulations require that contractors and 

subcontractors engaged in construction work covered by the DBRA certify and submit 

weekly payroll reports regarding the payment of DBRA prevailing wages.5

 HUD, in 

consultation with DOL, has concluded that in relation to force account employees, PHAs, 

tribes, TDHEs/IHAs and the DHHL are not covered by the payroll certification and 

submission requirements imposed on contractors and subcontractors. However, such 

agencies are required to maintain, for not less than three (3) years following completion of 

the covered work, records demonstrating compliance with DBRA prevailing wage 

requirements (as well as HUD-determined wage rate requirements). 

Finally, the Copeland Act and corresponding DOL regulations remain applicable to all 

contractors and subcontractors engaged in DBRA-covered work. 

 Any questions regarding this Letter should be directed to the Regional or Field HUD 

Labor Relations staff responsible for the jurisdiction involved. A list of Labor Relations 

staff and contact information is available at the Office of Labor Relations website: 

www.hud.gov/offices/olr 

 /S/ 

 Edward L. Johnson 

 Director 

 Office of Labor Relations 

 

5

 See 29 CFR Part 3, Section 3.3(b).