Employment Law Guide

U.S. Department of Labor

Office of the Assistant Secretary for Policy 

2005 

Foreword

We at the Department of Labor believe that workers are best protected when 

employers, employees, and the government work together to protect wages, 

benefits, pensions, safety, and health. 

To this end, we have developed a Department-wide initiative called Compliance 

Assistance, which envisions a cooperative approach toward all stakeholders, 

especially small businesses. Compliance Assistance complements our aggressive 

enforcement of the nation’s worker protection laws. 

We have developed a number of compliance materials in plain language, including 

online resources, which help answer questions and make our regulations easier to 

understand. The Employment Law Guide, which is available in both English and 

Spanish, is one of these Compliance Assistance tools. 

We hope that, through use of this Guide, you will be better equipped to comply 

with our worker protection rules and regulations. Through this publication, as in all 

of our Compliance Assistance efforts, our goal is to better protect workers by helping 

both employers and employees understand our legal standards and meet them. 

Elaine L. Chao 

Secretary of Labor 

i 
ii
Employment Law Guide: 

Laws, Regulations, and 

Technical Assistance Services 

Office of the Assistant Secretary for Policy 

Preface 

This Guide describes the statutes and regulations administered by the U.S. Department 

of Labor (DOL) that affect businesses and workers. The Guide is designed mainly 

for those needing “hands-on” information to develop wage, benefit, safety and 

health, and nondiscrimination policies for businesses in general industry. 

Read the overview first to find out which requirements apply to your business. 

For each requirement, the overview provides a link to the related chapter in 

the Guide and to the relevant DOL agency. Employers in certain industries 

(for instance, agriculture) will be advised to contact specific offices within the 

Department of Labor for further information. 

Each chapter lists the telephone number of the DOL agency that administers 

the laws and regulations addressed in that chapter. If you have any difficulty 

contacting a DOL agency (for instance, due to a telephone number that has 

been changed), or if you need referral information on any topic within DOL’s 

purview, call the Department’s Toll-Free Help Line at 1–866–4–USA–DOL 

(1–866–487–2365). All calls are kept confidential within the bounds of 

DOL’s compliance assistance confidentiality protocol (www.dol.gov/compliance/ 

inquiry.htm). 

The Employment Law Guide is offered as a public resource. It does not create 

new legal obligations, and it is not a substitute for the U.S. Code, Federal Register, 

or Code of Federal Regulations as the official sources of applicable law. Every effort 

has been made to ensure that the information provided is complete and accurate 

as of the time of publication, and this will continue. Later versions of this Guide will 

be offered at www.dol.gov/compliance or by calling our Toll-Free Help Line at the 

number noted above. 

Small Business Regulatory Enforcement Fairness Act of 1996 

You should also be aware that the Small Business Regulatory Enforcement Fairness 

Act of 1996 (SBREFA) places obligations on federal agencies and provides rights 

to small businesses. The Department of Labor’s Office of Small Business Programs 

oversees the Department’s SBREFA activities. You may also obtain information on 

SBREFA from the Small Business Administration (SBA) (www.sba.gov). 

Under SBREFA, the SBA has established an SBA Ombudsman and SBA Regional 

Fairness Boards. If you wish to comment directly to SBA on the enforcement 

actions of any DOL agency, call 1– 888–734– 3247. You may also call the 

Department of Labor’s Office of Small Business Programs at 202– 693–6460 

or your local DOL Regional Office. 

iii 
Other Information for Employers and Employees 

By itself or with other agencies, the Department of Labor administers several 

employment programs to assist both employees and employers. In particular, 

One-Stop Career Centers established under the Workforce Investment Act offer 

a variety of services for individuals seeking employment, as well as resources 

for employers seeking workers. 

Also, employers and employees may wish to explore the Work Opportunity 

Tax Credit (WOTC) and the Welfare-to-Work tax credits. These credits can assist 

employers in their efforts to hire eligible low-income individuals. 

Finally, employees who lose their jobs due to changes in business conditions 

in general may wish to file for unemployment insurance benefits, which are 

administered by the various states with assistance from the Department of Labor. 

Employees who lose their jobs due to increased imports from, or shifts in 

production to, foreign countries may be eligible for assistance under the 

Trade Adjustment Act program. 

Further information about all of these programs and provisions can be found on 

the Department of Labor’s Employment and Training Administration’s Web site 

(www.doleta.gov). 

iv 
Contents

OVERVIEW ............................................................................................................................. 1

A. WAGES AND HOURS OF WORK 

Minimum Wage and Overtime Pay ............................................................................... 9

Wage Garnishment ....................................................................................................... 1 3

Migrant and Seasonal Agricultural Worker Protection ................................................ 1 5

Child Labor (Nonagricultural Work) .............................................................................. 1 8

B. SAFETY AND HEALTH STANDARDS 

Occupational Safety and Health ................................................................................. 2 1

Mine Safety and Health ................................................................................................ 3 0

C. HEALTH BENEFITS AND RETIREMENT STANDARDS 

Employee Benefit Plans ................................................................................................ 3 4

Black Lung Compensation ............................................................................................ 4 0

Longshore and Harbor Workers’ Compensation ......................................................... 4 3

D. OTHER WORKPLACE STANDARDS 

Family and Medical Leave ........................................................................................... 4 7

Lie Detector Tests .......................................................................................................... 5 0

Whistleblower Protection ............................................................................................. 5 2

Plant Closings and Mass Layoffs ................................................................................... 5 5

Union Members ............................................................................................................ 5 7

Uniformed Service Members ....................................................................................... 6 1

E. WORK AUTHORIZATION FOR NON-U.S. CITIZENS 

Authorized Workers ...................................................................................................... 6 4

Temporary Agricultural Workers (H-2A Visas) ............................................................. 6 5

Temporary Nonagricultural Workers (H-2B Visas) ....................................................... 6 9

Workers in Professional and Specialty Occupations (H-1B and H-1B1 Visas) ........ 7 1

Immigration for Workers Obtaining Permanent Employment

in the United States ...................................................................................................... 7 5

Crewmembers (D-1 Visas) ........................................................................................... 7 7

v 
F. FEDERAL CONTRACTS: WAGES, HOURS OF WORK, AND 

FRINGE BENEFITS WORKING CONDITIONS 

Wages in Supply and Equipment Contracts ............................................................... 7 9

Prevailing Wages in Service Contracts ......................................................................... 8 1

Prevailing Wages in Construction Contracts ................................................................ 8 3

Hours and Safety Standards in Construction Contracts ............................................. 8 5

“Kickbacks” in Federally Funded Construction (Copeland Act) ............................... 8 7

Notice of Employee Rights Concerning Payment of Union Dues ............................. 8 9

G. FEDERAL CONTRACTS: EQUAL OPPORTUNITY 

Employment Discrimination and Equal Opportunity in Supply

and Service Contracts (Executive Order 11246) ...................................................... 9 1

Employment Discrimination in Construction Contracts

(Executive Order 11246) ............................................................................................. 9 5

Equal Opportunity for Individuals with Disabilities .................................................... 9 9

Employment Discrimination and Equal Opportunity for Certain

Veterans Who Served on Active Duty and Special Disabled Veterans ................. 102

H. INDEX OF ACTS BY SPECIFIC INDUSTRY 

Agriculture 

Fair Labor Standards Act (FLSA) ............................................................................. 9

Migrant and Seasonal Agricultural Worker Protection Act (MSPA) .................... 1 5

Occupational Safety and Health Act (OSH Act) ............................................... 2 1

Authorized Workers (Non-U.S. Citizens) .............................................................. 6 4

Temporary Agricultural Workers (H-2A Visas) ...................................................... 6 5

Immigration and Nationality Act (INA) ................................................................. 7 1

Mining 

Federal Mine Safety and Health Act of 1977 ...................................................... 3 0

Black Lung Compensation ..................................................................................... 4 0

Construction 

Occupational Safety and Health Act (OSH Act) ............................................... 2 1

Davis–Bacon Act and Related Acts ..................................................................... 8 3

Copeland Act (“Kickbacks” in Federally Funded Construction) ......................... 8 7

Executive Order 11246 (Employment Discrimination in

Construction Contracts) ......................................................................................... 9 5

Transportation 

Occupational Safety and Health Act (OSH Act) ............................................... 2 1

vi 
Overview

Major Statutes and Regulations Administered 

by the Department of Labor 

This Guide describes the requirements of each major statute enforced by the 

Department of Labor (DOL). The various chapters are organized by type of standard 

(e.g., Wages and Hours of Work; Safety and Health Standards; Health Benefits and 

Retirement Standards; Other Workplace Standards). 

Each chapter discusses (1) which employers or employees are covered by the 

statute; (2) the statute’s basic provisions and requirements; (3) employee rights; 

(4) how to obtain information and compliance assistance from DOL; (5) penalties or

sanctions for non-compliance; and (6) relation of the statute to state, local, and other 

federal laws. 

The chapters contain links to more detailed information, such as the texts of statutes, 

regulations, and interpretative bulletins, which can be found on DOL agencies’ 

Web sites. To understand their full responsibilities under each statute, users should 

refer to these more detailed materials. 

Please note that other federal agencies besides DOL enforce laws and regulations 

that affect employers. For example, the Equal Employment Opportunity Commission 

(www.eeoc.gov) enforces many of the statutes designed to ensure non-discrimination 

in employment, and the National Labor Relations Board (www.nlrb.gov) administers 

the Taft–Hartley Act regulating employer conduct with regard to employees in a 

wide range of areas. Please consult these agencies for further information on their 

requirements. 

The Overview is structured to help businesses, particularly new businesses, 

determine which DOL statutes are most likely to apply to them. The first statutes 

discussed apply to most employers, followed by those that apply to federal 

contractors, and finally, by the statutes that apply to specific industries, i.e., 

agriculture, mining, construction, and transportation. 

Other sources of assistance include the following: 

■ DOL’s Compliance Assistance Web page (www.dol.gov/compliance); 

■ A list of major DOL-enforced statutes (www.dol.gov/compliance/ 

laws/main.htm); and 

■ Employment Laws Assistance for Workers and Small Businesses (elaws) Advisors 

(www.dol.gov/elaws) is an interactive system designed to help employers and 

employees understand and comply with many laws administered by DOL. Each 

elaws Advisor provides information on a specific law or regulation based on the 

user’s particular situation. Of particular interest to new or small businesses is the 

FirstStep Employment Law Advisor (www.dol.gov/elaws/firststep/) that helps 

employers determine which laws administered by DOL apply to their business 

or organization. 

1 
I. Requirements that Apply to Most Employers

A. Wages and Hours of Work 

The Fair Labor Standards Act (FLSA) prescribes minimum wage and overtime pay 

standards as well as recordkeeping and child labor standards for most private and 

public employment, including work conducted in the home. The Wage and Hour 

Division of the Employment Standards Administration (ESA) administers this Act. 

Contact your local ESA Wage and Hour Division office for more information 

(1– 866–4USWAGE or www.dol.gov/esa/contacts/whd/america2.htm). 

The minimum wage and overtime provisions of the FLSA require the following 

from employers of covered employees who are not otherwise exempt: 

■ As of September 1, 1997, employers must pay covered employees a minimum 

wage of not less than $5.15 an hour. Employers may pay employees on a 

piece-rate basis and, under some circumstances, may consider tips as part 

of wages. 

■ Youths under 20 years of age may be paid a minimum wage of not less than 

$4.25 an hour during the first 90 consecutive calendar days of employment with 

an employer. Employers may not displace any employee to hire someone at the 

youth minimum wage. 

■ Although the Act does not place a limit on the total hours which may be 

worked by an employee who is at least 16 years old, it does require that covered 

employees, unless otherwise exempt, be paid not less than one and one-half 

times their regular rates of pay for all hours worked in excess of 40 in a workweek. 

In addition, the FLSA sets forth special rules for working out of the home. For 

example, in certain manufacturing industries, the employer must first obtain a 

certification permitting homework from ESA’s Wage and Hour Division. 

As noted above, the FLSA’s child labor provisions for nonagricultural work include 

restrictions on the hours of work and occupations for youths under age 16 and 

restrictions on employment of 16 and 17 year olds in occupations found to be 

hazardous by the Department. 

Other generally applicable statutes that set workplace standards include: 

■ Under the Immigration and Nationality Act (INA), foreign workers may work in 

the United States. ESA’s Wage and Hour Division enforces rules pertaining to the 

employment of nonimmigrant workers in four visa classifications: D-1 (Crewmembers); 

H-1B and H-1B1 (workers employed in a “specialty occupation” or as fashion 

models); and H-2A (workers employed in temporary agricultural jobs). Under the 

INA, employers must verify the identity and employment authorization of all 

employees, including foreign workers. Contact your local ESA Wage and Hour 

Division Office for more information (1–866–4USWAGE or www.dol.gov/esa/ 

contacts/whd/america2.htm). 

■ Garnishment of wages by employers is regulated under the Consumer Credit 

Protection Act. ESA’s Wage and Hour Division administers this Act. Contact your 

local ESA Wage and Hour Division Office for more information (1–866–4USWAGE 

or www.dol.gov/esa/contacts/whd/america2.htm). 

2 
B. Safety and Health Standards

The Occupational Safety and Health Act (OSH Act), administered by the Department 

of Labor’s Occupational Safety and Health Administration (OSHA), regulates safety 

and health conditions in most private industry workplaces (except those in industries, 

such as transportation and mining, that are regulated under other statutes). 

OSHA sets safety and health standards by regulation. 

■ Safety standards cover hazards such as falls, explosions, fires, and cave-ins, as 

well as machine and vehicle operation and maintenance, etc. 

■ Health standards regulate exposure to a variety of health hazards through 

engineering controls, the use of personal protective equipment (e.g., respirators 

or hearing protection), and work practices. 

Employers covered by the OSH Act are required to maintain safe and healthful 

workplaces. These employers must become familiar with job safety and health 

standards applicable to their establishments, comply with the standards, and 

eliminate hazardous conditions to the extent possible. Employees must comply 

with all rules and regulations that apply to their own actions and practices. 

Where OSHA has not set forth a specific standard, employers are responsible for 

complying with the OSH Act’s “general duty” clause [Section 5(a)(1)], which states 

that each employer “shall furnish. . .a place of employment which is free from 

recognized hazards that are causing or are likely to cause death or serious physical 

harm to his employees.” 

Specific safety and health standards developed by OSHA supersede the more 

general safety and health regulations originally issued under the Walsh–Healey Act, 

the McNamara–O’Hara Service Contract Act, the Contract Work Hours and Safety 

Standards Act, and the Arts and Humanities Act. 

States operating under OSHA-approved state plans enforce safety and health 

standards in their respective states, while OSHA is responsible for enforcement 

in the remaining states. Contact your local OSHA office for more information 

(1– 800 –321–OSHA or www.osha.gov/html/RAmap.html). 

Another generally applicable statute, the Fair Labor Standards Act (FLSA), prescribes 

the conditions under which minors (younger than 18) can safely work. These 

restrictions affect most private and public employment. ESA’s Wage and Hour 

Division administers this Act. Contact your local ESA Wage and Hour Division Office 

for more detail (1–866–4USWAGE or www.dol.gov/esa/contacts/whd/america2.htm). 

C. Health Benefits and Retirement Standards

The Employee Retirement Income Security Act (ERISA) governs certain activities 

of most employers who have pension or welfare benefit plans. This Act preempts 

many state laws in this area. The Employee Benefits Security Administration 

(EBSA) administers ERISA. Contact your local EBSA office for more information 

(1–866–444–EBSA or www.dol.gov/ebsa/aboutebsa/org_chart.html#section13). 

ERISA covered pension plans must meet a wide range of fiduciary and reporting 

and disclosure requirements. EBSA’s regulations define what constitutes plan assets, 

what is adequate consideration for the sale of plan assets, and the effects of control 

by participants over the assets in their plans, among other things. 

3 
Under ERISA, welfare benefit plans also must meet a wide range of fiduciary, 

reporting, and disclosure requirements. The Consolidated Omnibus Budget 

Reconciliation Act of 1985 (COBRA) enacted provisions for disclosure and notification 

requirements for the continuation of health care. These provisions cover group 

health plans of employers with 20 or more employees on a typical business day in 

the previous calendar year. COBRA gives separated participants and beneficiaries an 

election to maintain coverage under the employer’s health plan at their own expense 

for a limited period of time. 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) added 

several provisions to ERISA which are designed to provide participants and 

beneficiaries of group health plans with improved portability and continuity of 

health insurance coverage. These provisions are also designed to improve access to 

insurance and protect against discrimination on the basis of health status. Moreover, 

HIPAA requires that health insurance coverage be renewable for small employers in 

certain circumstances. 

The statute also provides an insurance mechanism to protect certain types of 

retirement benefits by requiring that employers pay annual pension benefit insurance 

premiums to the Pension Benefit Guaranty Corporation (PBGC) (www.pbgc.gov), 

which is associated with the Department of Labor. Pension insurance information 

can be obtained by writing Pension Benefit Guaranty Corporation, P.O. Box 151750, 

Alexandria, VA 22315-1750 or by calling 1–800–400–7242. 

D. Other Workplace Standards 

The Family and Medical Leave Act (FMLA) requires employers of 50 or more 

employees (and all public agencies) to provide up to 12 weeks of unpaid, 

job-protected leave to eligible employees for the birth and care of a child, for 

placement with the employee of a child for adoption or foster care, or for the 

serious illness of the employee or an immediate family member. ESA’s Wage and 

Hour Division administers this Act. Contact your local ESA Wage and Hour Division 

Office for more information (1–866–4USWAGE or www.dol.gov/esa/contacts/whd/ 

america2.htm). 

Veterans’ reemployment rights are protected for National Guard and Reserve 

members who are called to active duty. The Uniformed Services Employment and 

Reemployment Rights Act (USERRA) addresses the rights and responsibilities of 

individuals and their employers, and the Veterans’ Employment and Training Service 

(VETS) administers this Act. Contact your local VETS office for more information 

(1–866–4–USA–DOL or www.dol.gov/vets/aboutvets/contacts/main.htm). 

The Worker Adjustment and Retraining Notification Act (WARN) provides for early 

warning to employees of proposed layoffs or plant closings. The Employment and 

Training Administration (ETA) can provide information on WARN, but since it does not 

have administrative or enforcement authority under WARN, it cannot provide specific 

advice or guidance with respect to individual situations. Contact your local ETA office 

for more information (1–877–US–2JOBS or www.doleta.gov/regions/regoffices/). 

The Employee Polygraph Protection Act (EPPA) prohibits most uses of lie detectors 

by employers on their employees and job applicants. ESA’s Wage and Hour Division 

administers this Act. Contact your local ESA Wage and Hour Division Office for more 

detail (1– 866–4USWAGE or www.dol.gov/esa/contacts/whd/america2.htm). 

4 
The Labor Management Reporting and Disclosure Act (LMRDA) (also known as the 

Landrum–Griffin Act) addresses the relationship between a union and its members. 

It ensures certain basic standards of democracy and fiscal responsibility in labor 

organizations. ESA’s Office of Labor-Management Standards (OLMS) administers this 

Act. Contact your local ESA OLMS office for more detail (1–866–4–USA–DOL or 

www.dol.gov/esa/contacts/olms/lmskeyp.htm#field_offices). 

II. Requirements that Apply to Employers Who Receive

Federal Contracts, Grants, or Financial Assistance 

Nondiscrimination and affirmative action requirements for federal contractors are 

set forth under Executive Order 11246, Section 503 of the Rehabilitation Act, and 

the Vietnam Era Veterans’ Readjustment Assistance Act (38 USC 4212). These laws 

prohibit discrimination and require affirmative action with regard to race, color, 

religion, sex, national origin, and status as a qualified individual with a disability or a 

protected veteran. ESA’s Office of Federal Contract Compliance Programs (OFCCP) 

administers these laws. Contact your local ESA OFCCP office for more information 

(1–800–397–6251 or www.dol.gov/esa/contacts/ofccp/ofnation2.htm). 

Various laws determine wage, hour, and fringe benefit standards for employees 

of federal contractors. These laws include: the Davis–Bacon and Related Acts 

(for construction); the Contract Work Hours and Safety Standards Act; the 

McNamara–O’Hara Service Contract Act (for services); and the Walsh–Healey Public 

Contracts Act (for manufacturing). ESA’s Wage and Hour Division determines the 

required wage and benefit rates and enforces these statutes. Contact your local 

ESA Wage and Hour Division Office for more information (1–866–4USWAGE or 

www.dol.gov/esa/contacts/whd/america2.htm). 

These Acts also authorize issuance of safety and health standards to covered 

contractors, unless specific standards issued by the Occupational Safety and Health 

Administration (OSHA) supersede them. Contact your local OSHA office for more 

information (1– 800 –321–OSHA or www.osha.gov/html/RAmap.html). 

Employers who receive federal grants or financial assistance from the Department of 

Labor must comply with the provisions of Title VI of the Civil Rights Act of 1964, as 

amended, and Section 504 of the Rehabilitation Act of 1973, as amended. Entities 

that receive federal financial assistance under the Workforce Investment Act of 1998 

(WIA) or that run programs and activities that are part of the One-Stop Career Center 

delivery system are subject to section 188 of the WIA. Information about these 

requirements can be found on DOL’s Equal Employment Opportunity Web page at 

www.dol.gov/dol/topic/discrimination/index.htm. 

E.O. 13201 requires Government contractors to post a notice (the Beck Poster) 

informing their employees that they have certain rights related to union membership 

and use of union dues and fees under federal law. Contact your local ESA OLMS 

office for more detail (1–866–4–USA–DOL or www.dol.gov/esa/contacts/olms/ 

lmskeyp.htm). 

5 
III. Requirements that Apply to Specific Industries

Many of the laws (e.g., the Occupational Safety and Health Act) described in the 

preceding sections also apply to businesses in the following industries. 

A. Agriculture

Under the authority of the Occupational Safety and Health Act, OSHA has issued a 

number of safety standards that address such matters as field sanitation, overhead 

protection for operators of agricultural tractors, grain handling facilities, and guarding 

of farm field equipment and cotton gins. Contact your local OSHA office for 

more detail (1–800 –321– OSHA or www.osha.gov/html/RAmap.html). 

The Immigration and Nationality Act (INA) requires that employers wishing to use 

nonimmigrant workers for temporary agricultural employment under the H-2A 

visa classification apply to the Employment and Training Administration for a labor 

certificate showing that there are not sufficient workers in the United States who are 

able, willing, qualified, and available to do the work, and that employment of such 

nonimmigrant workers will not adversely affect the wages and working conditions of 

workers in the United States. Employers of such workers must comply with workerprotection provisions, including wage, transportation, and housing safety standards. 

ESA’s Wage and Hour Division enforces these provisions. Contact your local ESA Wage 

and Hour Division Office for more information (1–866–4USWAGE or www.dol.gov/ 

esa/contacts/whd/america2.htm). 

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) requires that 

covered farm labor contractors, agricultural employers, and agricultural associations 

comply with worker protection provisions applicable to migrant and seasonal 

agricultural workers whom they recruit, solicit, hire, employ, furnish, or transport or, in 

the case of migrant agricultural workers, to whom they provide housing. ESA’s Wage 

and Hour Division administers the requirements of MSPA. Contact your local ESA Wage 

and Hour Division Office for more information (1–866–4USWAGE or www.dol.gov/ 

esa/contacts/whd/america2.htm). 

The Fair Labor Standards Act (FLSA) contains special child labor regulations that 

apply to agricultural employment. The regulations administered and enforced by 

the Wage and Hour Division apply only to those establishments with employees 

(i.e., they do not apply to family-run and family-operated farms that do not hire 

outside workers). Contact your local ESA Wage and Hour Division Office for more 

information (1–866–4USWAGE or www.dol.gov/esa/contacts/whd/america2.htm). 

In addition, the Employment and Training Administration (ETA) administers several 

agriculture-specific programs. Contact your local ETA office for more information 

(1– 877–US–2JOBS or www.doleta.gov/regions/regoffices/). 

Finally, the Environmental Protection Agency (www.epa.gov) issues and enforces 

several safety and health standards (e.g., with respect to pesticides) that apply to 

this industry. 

B. Mining

The Federal Mine Safety and Health Act of 1977 was enacted to improve working 

conditions in the nation’s mines. This law strengthened an earlier coal mining law 

and brought metal and nonmetal miners under the same general protections as 

those afforded coal miners. Its provisions cover all miners and other persons 

6 
employed to work on mine property. The Mine Safety and Health Administration 

(MSHA) administers the Act. Contact the nearest MSHA office for more detail 

(1–866–4–USA–DOL or www.msha.gov/contactmsha/contactmsha.htm). 

Under the Act, the operators of mines, with the assistance of their employees, are 

responsible for ensuring the health and safety of the miners. Each mine must be 

registered with MSHA. Many mine operators must submit plans to MSHA before 

beginning operations, and such plans must be followed during mining. 

The 1977 Act established mandatory miner training requirements and strengthened 

health protection measures and gassy mine safety programs. The Act also provided 

for closure of mines in cases of imminent danger to workers or failure to correct 

violations within the time allowed, greater involvement of miners and their 

representatives in processes affecting workers’ health, and tougher civil monetary 

penalties for safety or health violations by mine operators. 

MSHA’s Coal Mine Safety and Health Division (www.msha.gov/programs/coal.htm) 

enforces the law and the regulations at underground and surface coal mines. MSHA’s 

Metal and Nonmetal Mine Safety and Health Division (www.msha.gov/programs/ 

metal.htm) enforces federal requirements at noncoal mines (including open pit 

mines, stone quarries, and sand and gravel operations). 

Health and safety regulations developed and enforced by MSHA cover numerous 

hazards, including those associated with the following: 

■ Exposure to respirable dust, airborne contaminants, and noise; 

■ Design, operation and maintenance requirements for mechanical equipment, 

including mobile equipment; 

■ Roof falls, and rib and face rolls; 

■ Flammable, explosive and noxious gases, dust, and smoke; 

■ Electrical circuits and equipment; 

■ Fires; 

■ Hoisting; and 

■ Access and egress. 

The Black Lung Benefits Act (BLBA), part of the Federal Mine Safety and Health Act 

of 1977, provides for monthly payments and medical treatment to coal miners 

totally disabled from pneumoconiosis (black lung disease). The Act also provides 

for payments to certain family members of miners who died from pneumoconiosis 

or are totally disabled because of it. ESA’s Office of Workers’ Compensation Programs, 

Division of Coal Mine Workers’ Compensation (DCMWC), administers the Act. Contact 

your local DCMWC office for more detail (1–800–638–7072 or www.dol.gov/esa/ 

contacts/owcp/blcontac.htm). 

C. Construction

Several Department of Labor agencies administer programs specifically related to 

the construction industry: 

■ Under the Occupational Safety and Health Act, OSHA sets and enforces 

construction safety and health standards. Contact your local OSHA office for 

more information (1–800 –321–OSHA or www.osha.gov/html/RAmap.html). 

7 
■ Davis–Bacon and Related Acts require most contractors and subcontractors on 

federally assisted contracts in excess of $2,000 to pay prevailing wage rates and 

fringe benefits, as determined by the Secretary of Labor through ESA’s Wage and 

Hour Division. Contact your local ESA Wage and Hour Division Office for more 

information (1–866–4USWAGE or www.dol.gov/esa/contacts/whd/america2.htm). 

■ Under Executive Order 11246, ESA’s OFCCP has issued specific regulations on 

nondiscrimination and affirmative action requirements for federal construction 

contractors and subcontractors. Contact your local ESA OFCCP office for more 

information (1– 800–397–6251 or www.dol.gov/esa/contacts/ofccp/ofnation2.htm). 

■ The “Anti-Kickback” section of the Copeland Act applies to all contractors and 

subcontractors performing on any federally funded or assisted contract for the 

construction or repair of any public building or public work, except contracts for 

which the only federal assistance is a loan guarantee. This provision precludes a 

contractor or subcontractor from in any manner inducing an employee to give up 

any part of the compensation to which he or she is entitled. Contact your local ESA 

Wage and Hour Division Office for more detail (1–866–4USWAGE or www.dol.gov/ 

esa/contacts/whd/america2.htm). 

D. Transportation 

Under the Occupational Safety and Health Act, OSHA issues and enforces 

standards for longshore work and the maritime industry. Contact your local OSHA 

office for more information (1–800–321– OSHA or www.osha.gov/html/RAmap.html). 

However, agencies outside of the Department of Labor administer many other laws 

affecting the transportation industry. For example, the Department of Transportation 

and the Railway Retirement Board primarily administer the Railway Labor Act. 

8 
Minimum Wage and Overtime Pay

Fair Labor Standards Act of 1938 (FLSA), 

as amended (29 USC §201 et seq.; 

29 CFR Parts 510 to 794) 

Who is Covered 

The Fair Labor Standards Act (FLSA) establishes standards for minimum wages, 

overtime pay, record keeping and child labor. These standards affect more than 

100 million workers, both full-time and part-time, in the private and public sectors. 

The Act applies to enterprises with employees who engage in interstate commerce, 

produce goods for interstate commerce, or handle, sell or work on goods or materials 

that have been moved in or produced for interstate commerce. For most firms, a test 

of not less than $500,000 in annual dollar volume of business applies (i.e., the Act 

does not cover enterprises with less than this amount of business). 

However, the Act does cover the following regardless of their dollar volume of 

business: hospitals; institutions primarily engaged in the care of the sick, aged, 

mentally ill or disabled who reside on the premises; schools for children who are 

mentally or physically disabled or gifted; preschools, elementary and secondary 

schools and institutions of higher education; and federal, state and local government 

agencies. 

Employees of firms that do not meet the $500,000 annual dollar volume test may 

be covered in any workweek when they are individually engaged in interstate 

commerce, the production of goods for interstate commerce, or an activity that is 

closely related and directly essential to the production of such goods. 

The Act covers domestic service workers, such as day workers, housekeepers, 

chauffeurs, cooks, or full-time babysitters, if they receive at least $1,300 (2001) in 

cash wages from one employer in a calendar year, or if they work a total of more 

than eight hours a week for one or more employers. 

An enterprise that was covered by the Act on March 31, 1990, and that ceased to 

be covered because of the increase in the annual dollar volume test to $500,000, 

as required under the 1989 amendments to the Act, continues to be subject to the 

overtime pay, child labor and recordkeeping requirements of the Act. 

The Act exempts some employees from its overtime pay and minimum wage 

provisions, and it also exempts certain employees from the overtime pay provisions 

alone. Because the exemptions are narrowly defined, employers should check the 

exact terms and conditions for each by contacting their local Wage and Hour Division 

office (www.dol.gov/esa/contacts/whd/america2.htm) within the Department of 

Labor’s Employment Standards Administration. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations, and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

9 
The following are examples of employees exempt from both the minimum wage 

and overtime pay requirements: 

■ Executive, administrative and professional employees (including teachers and 

academic administrative personnel in elementary and secondary schools), outside 

sales employees, and certain skilled computer professionals (as defined in the 

Department of Labor’s regulations);* 

■ Employees of certain seasonal amusement or recreational establishments; 

■ Employees of certain small newspapers and switchboard operators of small 

telephone companies; 

■ Seamen employed on foreign vessels; 

■ Employees engaged in fishing operations; 

■ Employees engaged in newspaper delivery; 

■ Farm workers employed on small farms (i.e., those that used less than 500 

“man-days” of farm labor in any calendar quarter of the preceding calendar year); 

and 

■ Casual babysitters and persons employed as companions to the elderly or infirm. 

The following are examples of employees exempt from the overtime pay 

requirements only: 

■ Certain commissioned employees of retail or service establishments; 

■ Auto, truck, trailer, farm implement, boat or aircraft salespersons employed by 

non-manufacturing establishments primarily engaged in selling these items to 

ultimate purchasers; 

■ Auto, truck, or farm implement parts-clerks and mechanics employed by 

non-manufacturing establishments primarily engaged in selling these items to 

ultimate purchasers; 

■ Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, 

seamen on American vessels, and local delivery employees paid on approved 

trip rate plans; 

■ Announcers, news editors and chief engineers of certain non-metropolitan 

broadcasting stations; 

■ Domestic service workers who reside in their employers’ residences; 

■ Employees of motion picture theaters; and 

■ Farmworkers. 

Certain employees may be partially exempt from the overtime pay requirements. 

These include: 

■ Employees engaged in certain operations on agricultural commodities and 

employees of certain bulk petroleum distributors; 

■ Employees of hospitals and residential care establishments that have agreements 

with the employees that they will work 14-day periods in lieu of 7-day workweeks 

(if the employees are paid overtime premium pay within the requirements of 

the Act for all hours worked over eight in a day or 80 in the 14-day work period, 

whichever is the greater number of overtime hours); and 

*These regulations were revised effective August 23, 2004. 

10 
■ Employees who lack a high school diploma, or who have not completed the eighth 

grade, who spend part of their workweeks in remedial reading or training in other 

basic skills that are not job-specific. Employers may require such employees to 

engage in these activities up to 10 hours in a workweek. Employers must pay normal 

wages for the hours spent in such training but need not pay overtime premium pay 

for training hours. 

Basic Provisions/Requirements 

The Act requires employers of covered employees who are not otherwise exempt 

to pay these employees a minimum wage of not less than $5.15 an hour as of 

September 1, 1997. Youths under 20 years of age may be paid a minimum wage 

of not less than $4.25 an hour during the first 90 consecutive calendar days of 

employment with an employer. Employers may not displace any employee to hire 

someone at the youth minimum wage. 

Employers may pay employees on a piece-rate basis, as long as they receive at 

least the equivalent of the required minimum hourly wage rate. Employers of tipped 

employees (i.e., those who customarily and regularly receive more than $30 a month 

in tips) may consider such tips as part of their wages, but employers must pay a direct 

wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain 

other conditions. 

The Act also permits the employment of certain individuals at wage rates below 

the statutory minimum wage under certificates issued by the Department of Labor: 

■ Student learners (vocational education students); 

■ Full-time students in retail or service establishments, agriculture, or institutions of 

higher education; and 

■ Individuals whose earning or productive capacities for the work to be performed 

are impaired by physical or mental disabilities, including those related to age 

or injury. 

The Act does not limit either the number of hours in a day or the number of days in a 

week that an employer may require an employee to work, as long as the employee is at 

least 16 years old. Similarly, the Act does not limit the number of hours of overtime that 

may be scheduled. However, the Act requires employers to pay covered employees 

not less than one and one-half times their regular rates of pay for all hours worked in 

excess of 40 in a workweek, unless the employees are otherwise exempt. 

Employers must keep records on wages, hours and other information as set forth in 

the Department of Labor’s regulations. Most of this data is the type that employers 

generally maintain in ordinary business practice. 

The Act prohibits performance of certain types of work in an employee’s home 

unless the employer has obtained prior certification from the Department of Labor. 

Restrictions apply in the manufacture of knitted outerwear, gloves and mittens, 

buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and 

health hazards are not involved). Employers wishing to employ homeworkers in these 

industries are required to provide written assurances to the Department of Labor that 

they will comply with the Act’s wage and other requirements, among other things. 

The Act generally prohibits manufacture of women’s apparel (and jewelry under 

hazardous conditions) in the home except under special certificates that may be 

issued when the employee cannot adjust to factory work because of age or disability 

(physical or mental), or must care for a disabled individual in the home. 

11 
Special provisions apply to state and local government employment. 

It is a violation of the Act to fire or in any other manner discriminate against an 

employee for filing a complaint or for participating in a legal proceeding under the 

Act. The Act also prohibits the shipment of goods in interstate commerce that were 

produced in violation of the minimum wage, overtime pay, child labor, or special 

minimum wage provisions. 

Employee Rights 

Employees may find out how to file a complaint from local Wage and Hour Division 

offices (www.dol.gov/esa/contacts/whd/america2.htm) or from the program’s toll-free 

information line at 1–866–4USWAGE. 

In addition, an employee may file a private suit, generally for the previous two years 

of back pay (three years in the case of a willful violation) and an equal amount as 

liquidated damages, plus attorney’s fees and court costs. 

Compliance Assistance Available 

More detailed information about the FLSA, including copies of explanatory 

brochures and regulatory and interpretative materials, is available on the Wage 

and Hour Division’s Web site (www.wagehour.dol.gov) or by contacting the local 

Wage and Hour Division offices (www.dol.gov/esa/contacts/whd/america2.htm). 

Another compliance assistance resource, the elaws Fair Labor Standards Act Advisor 

(www.dol.gov/elaws/esa/flsa/screen7.asp), helps answers questions about workers 

and businesses that are subject to the FLSA. For additional assistance, contact the 

Wage and Hour Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

The Department of Labor uses a variety of remedies to enforce compliance with the 

Act’s requirements. When Wage and Hour Division investigators encounter violations, 

they recommend changes in employment practices to bring the employer into 

compliance, and they request the payment of any back wages due to employees. 

Willful violators may be prosecuted criminally and fined up to $10,000. A second 

conviction may result in imprisonment. Employers who willfully or repeatedly violate 

the minimum wage or overtime pay requirements are subject to civil money penalties 

of up to $1,000 per violation. 

When the Department of Labor assesses a civil money penalty, the employer has the 

right to file an exception to the determination within 15 days of receipt of the notice. 

If an exception is filed, it is referred to an Administrative Law Judge for a hearing and 

determination as to whether the penalty is appropriate. If an exception is not filed, 

the penalty becomes final. 

The Department of Labor may also bring suit for back pay and an equal amount in 

liquidated damages, and it may obtain injunctions to restrain persons from violating 

the Act. 

Relation to State, Local, and Other Federal Laws 

State laws also apply to employment subject to this Act. When both this Act and 

a state law apply, the law setting the higher standards must be observed. 

12 
Wage Garnishment

Title III, Consumer Credit Protection Act (CCPA) 

(15 USC §1671 et seq.; 29 CFR Part 870) 

Who is Covered 

Title III of the Consumer Credit Protection Act (CCPA) protects employees from 

discharge by their employers because their wages have been garnished for any one 

debt, and it limits the amount of an employee’s earnings that may be garnished in any 

one week. Title III applies to all employers and individuals who receive earnings for 

personal services (including wages, salaries, commissions, bonuses, and income 

from a pension or retirement program, but ordinarily not including tips). 

Basic Provisions/Requirements 

Wage garnishment occurs when an employer withholds the earnings of an individual 

for the payment of a debt as the result of a court order or other equitable procedure. 

Title III prohibits an employer from discharging an employee because his or her 

earnings have been subject to garnishment for any one debt, regardless of the 

number of levies made or proceedings brought to collect it. Title III does not, 

however, protect an employee from discharge if the employee’s earnings have 

been subject to garnishment for a second or subsequent debt. 

Title III also protects employees by limiting the amount of earnings that may be 

garnished in any workweek or pay period to the lesser of 25 percent of disposable 

earnings or the amount by which disposable earnings are greater than 30 times 

the federal minimum hourly wage prescribed by Section 6 (a) (1) of the Fair Labor 

Standards Act of 1938. This limit applies regardless of how many garnishment orders 

an employer receives. As of September 1, 1997, the federal minimum wage is 

$5.15 per hour. 

In court orders for child support or alimony, Title III allows up to 50 percent of an 

employee’s disposable earnings to be garnished if the employee is supporting a 

current spouse or child, and up to 60 percent if the employee is not doing so. 

An additional five percent may be garnished for support payments over 12 weeks 

in arrears. The restrictions noted in the preceding paragraph do not apply to such 

garnishments. 

“Disposable earnings” is the amount of earnings left after legally required deductions 

(e.g., federal, state and local taxes, Social Security, unemployment insurance, and 

state employee retirement systems) have been made. Deductions not required by 

law (e.g., union dues, health and life insurance, and charitable contributions) are 

not subtracted from gross earnings when the amount of disposable earnings for 

garnishment purposes is calculated. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

13 
Title III specifies that garnishment restrictions do not apply to bankruptcy court 

orders and debts due for federal and state taxes. Nor do they affect voluntary wage 

assignments, i.e., situations where workers voluntarily agree that their employers 

may turn over a specified amount of their earnings to a creditor or creditors. 

Employee Rights 

In most cases, Title III gives wage earners the right to receive at least partial 

compensation for the personal services they provide despite wage garnishment. 

This law also prohibits an employer from discharging an employee because of 

garnishment of wages for any one indebtedness. The Wage and Hour Division of the 

Employment Standards Administration accepts complaints of alleged Title III violations. 

Compliance Assistance Available 

The Wage and Hour Division of the Employment Standards Administration administers 

and enforces Title III. More detailed information, including copies of explanatory 

brochures and regulatory and interpretative materials, may be obtained from the 

Wage and Hour Division’s Web site (www.wagehour.dol.gov) or by contacting the 

Wage and Hour Division’s local offices (www.dol.gov/esa/contacts/whd/ 

america2.htm). For additional compliance assistance, contact the Wage and Hour 

Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

Violations of Title III may result in reinstatement of a discharged employee, payment 

of back wages, and restoration of improperly garnished amounts. Where violations 

cannot be resolved through informal means, the Department of Labor may initiate 

court action to restrain violators and remedy violations. Employers who willfully violate 

the discharge provisions of the law may be prosecuted criminally and fined up to 

$1,000, or imprisoned for not more than one year, or both. 

Relation to State, Local, and Other Federal Laws 

If a state wage garnishment law differs from Title III, the employer must observe 

the law resulting in the smaller garnishment, or prohibiting the discharge of an 

employee because his or her earnings have been subject to garnishment for more 

than one debt. 

14 
Migrant and Seasonal 

Agricultural Worker Protection 

The Migrant and Seasonal Agricultural 

Worker Protection Act (MSPA), as amended 

(29 USC §1801 et seq.; 29 CFR Part 500) 

Who is Covered 

The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) safeguards 

most migrant and seasonal agricultural workers in their interactions with farm labor 

contractors, agricultural employers, agricultural associations, and providers of migrant 

housing. However, some farm labor contractors, agricultural employers, agricultural 

associations, and providers of migrant housing are exempt from MSPA under limited 

circumstances. 

Basic Provisions/Requirements 

The MSPA requires farm labor contractors, agricultural employers, and agricultural 

associations who recruit, solicit, hire, employ, furnish, transport, or house agricultural 

workers, as well as providers of migrant housing, to meet certain minimum 

requirements in their dealings with migrant and seasonal agricultural workers. 

These requirements include: 

■ Farm labor contractor registration: Farm labor contractors (and any employee 

who performs farm labor contracting functions) must register with the Department 

of Labor before recruiting, soliciting, hiring, employing, furnishing or transporting 

any migrant or seasonal agricultural worker. Agricultural employers and associations 

(and their employees) need not register as farm labor contractors. 

An agricultural employer or association using the services of a farm labor contractor 

must first verify the registration status of the farm labor contractor. This process 

includes determining that the contractor is properly authorized for all activities he 

or she will undertake. To verify registration status call 1–866–4USWAGE. 

■ Employment relationship: Under certain circumstances, the Department of Labor 

may determine that an agricultural employer or association that uses the services of 

a farm labor contractor is a joint employer of the agricultural workers furnished by 

the farm labor contractor. In joint employment situations, the agricultural employer 

or association is equally responsible with the farm labor contractor for compliance 

with employment-related MSPA obligations, such as the proper payment of wages. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

15 
■ Disclosure: Each migrant and seasonal day-haul worker must receive a written 

disclosure at the time of recruitment that describes the terms and conditions of his 

or her employment. When offering employment, the employer must provide such 

disclosure to all seasonal workers upon request. The disclosure must be written in 

the worker’s language. The employer must also post in a conspicuous place at the 

job site a poster setting forth the rights and protections that MSPA affords workers. 

A housing provider must post or present to each worker a statement of the terms 

and conditions of occupancy. 

■ Information and Recordkeeping: Each farm labor contractor, agricultural employer 

or association that employs any agricultural worker must maintain payroll records 

for each worker showing the basis on which wages were paid, the number of 

piecework units earned, the number of hours worked, the total pay for each pay 

period, the amounts and reasons for any deductions, and the net pay. 

The employer must provide all workers with these itemized statements and must 

preserve these records for three years. If a farm labor contractor is performing 

the payroll function, the contractor must provide a copy of the pay records to 

the person to whom the workers are furnished (e.g., agricultural employer or 

association), and that person must keep the records for three years. No farm labor 

contractor, agricultural employer, or association may knowingly provide false or 

misleading information to a worker about employment or the terms and conditions 

of employment. 

■ Wages, Supplies, and Working Arrangements: Each person employing agricultural 

workers must pay all wages owed when due. Farm labor contractors, agricultural 

employers, and associations are prohibited from requiring workers to purchase 

goods or services solely from such contractor, employer, or association, or any 

person acting as an agent for such a person. In addition, no farm labor contractor, 

agricultural employer, or association may violate the terms of the working 

arrangement without adequate justification. 

■ Safety and Health of Housing: Each person who owns or controls housing 

provided to migrant agricultural workers must ensure that the facility complies 

with the federal and state safety and health standards covering that housing. 

Migrant housing may not be occupied until it has been inspected and certified 

to meet these safety and health standards. The certification of occupancy must 

be posted at the site. 

■ Transportation Safety: Each vehicle used to transport migrant or seasonal 

agricultural workers must be properly insured and operated by a properly licensed 

driver. Each such vehicle must also meet federal and state safety standards. 

■ Employer Protections: Farm labor contractors must comply with the terms of 

any written agreement they make with an agricultural employer or association. 

■ Enforcement: The Wage and Hour Division of the Employment Standards 

Administration enforces MSPA. During a MSPA investigation, Wage and Hour 

investigators may enter and inspect premises (including vehicles and housing), 

review and transcribe payroll and other records, and interview employers and 

employees. 

16 
Employee Rights 

The MSPA provides migrant agricultural workers and day-haul seasonal agricultural 

workers the right to receive written notice of the terms and conditions of their 

employment when recruited; it provides seasonal workers the right to receive such 

notification upon the worker’s request. The MSPA also requires employers of migrant 

and seasonal agricultural workers to adhere to the disclosed terms and conditions 

of employment. Certain exemptions and exclusions apply to these provisions. 

The MSPA also gives migrant and seasonal agricultural workers the right to file a 

complaint with the Wage and Hour Division, file a private lawsuit under the Act (or 

cause a complaint or lawsuit to be filed), or testify or cooperate with an investigation 

or lawsuit in other ways without being intimidated, threatened, restrained, coerced, 

blacklisted, discharged, or discriminated against in any manner. 

Compliance Assistance Available 

More detailed information, including explanatory brochures and regulatory and 

interpretative materials, may be obtained from the Wage and Hour Division’s Web 

site (www.wagehour.dol.gov) or by contacting the Wage and Hour Division’s local 

offices (www.dol.gov/esa/contacts/whd/america2.htm). Information about farm labor 

contractor applications is available from the nearest State Workforce Agency office 

(1–866–4–USA–DOL) or any Wage and Hour Division office. For additional 

compliance assistance, contact the Wage and Hour Division help line at 

1– 866–4USWAGE. 

Penalties/Sanctions 

Violations of MSPA may result in civil money penalties, back wage assessments, and 

revocations of certificates of registration. Violations may also result in civil or criminal 

actions instituted by the Department of Labor against any person found in violation 

of the Act. Civil money penalties up to $1,000 may be assessed for each violation. 

Criminal conviction for first time violators may result in one year in prison and a $1,000 

fine; repeat convictions can result in up to three years in prison and $10,000 in fines. 

In addition, individuals whose MSPA rights have been violated may seek civil money 

damages in federal court. 

Relation to State, Local, and Other Federal Laws 

MSPA supplements any state or local law. Compliance with MSPA does not excuse 

violation of applicable state laws or regulations. 

17 
Child Labor 

(Nonagricultural Work) 

Fair Labor Standards Act of 1938 (FLSA), 

as amended (29 USC §201 et seq.; 

29 CFR Parts 570 to 580) 

Who is Covered 

The child labor provisions of the Fair Labor Standards Act (FLSA) are designed to 

protect the educational opportunities of youths and to prohibit their employment 

in jobs and under conditions detrimental to their health and well-being. 

In nonagricultural work, the child labor provisions apply to enterprises with 

employees engaging in interstate commerce, producing goods for interstate 

commerce, or handling, selling or working on goods or materials that have been 

moved in or produced for interstate commerce. For most firms, an annual dollar 

volume of business test of not less than $500,000 applies. 

The Act covers the following employers regardless of their dollar volume of business: 

hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill 

or disabled who reside on the premises; schools for children who are mentally or 

physically disabled or gifted; preschools, elementary and secondary schools and 

institutions of higher education; and federal, state and local government agencies. 

Employees of firms that do not meet the $500,000 annual dollar volume test may 

be covered in any workweek in which they are individually engaged in interstate 

commerce, the production of goods for interstate commerce, or an activity that is 

closely related and directly essential to the production of such goods. 

An enterprise that was covered by the Act on March 31, 1990, and is no longer 

covered because of the increase in the annual dollar volume test to $500,000 under 

the 1989 amendments to the Act, remains subject to the Act’s child labor provisions. 

While 16 is the minimum age for most nonfarm work, youths aged 14 and 15 may 

work outside of school hours in certain occupations under certain conditions. They 

may, at any age: deliver newspapers; perform in radio, television, movies, or theatrical 

productions; work for their parents in their solely owned nonfarm businesses (except 

in mining, manufacturing, or in any other occupation declared hazardous by the 

Secretary); or gather evergreens and make evergreen wreaths. 

Basic Provisions/Requirements 

The child labor provisions include restrictions on hours of work and occupations 

for youths under age 16. These provisions also set forth 17 hazardous occupations 

orders for jobs that the Secretary has declared too dangerous for those under age 18 

to perform. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

18 
The Act prohibits the interstate shipment of goods produced in violation of the 

child labor provisions. It is also a violation of the Act to fire or in any other manner 

discriminate against an employee for filing a complaint or for participating in a legal 

proceeding under the Act. 

The permissible jobs and hours of work, by age, in nonfarm work are as follows: 

■ Youths age 18 or older are not subject to restrictions on jobs or hours; 

■ Youths age 16 and 17 may perform any job not declared hazardous by the 

Secretary, and are not subject to restrictions on hours; 

■ Youths age 14 and 15 may work outside school hours in various nonmanufacturing, 

nonmining, nonhazardous jobs under the following conditions: no more than three 

hours on a school day, 18 hours in a school week, eight hours on a non-school day, 

or 40 hours in a non-school week. In addition, they may not begin work before 

7 a.m. or work after 7 p.m., except from June 1 through Labor Day, when evening 

hours are extended until 9 p.m. Those enrolled in an approved Work Experience 

and Career Exploration Program (WECEP) may work up to 23 hours in school weeks 

and three hours on school days (including during school hours). 

Detailed information on the occupations determined to be hazardous by the 

Secretary is available from the Wage and Hour Division offices. 

By regulation, employers must keep records of the dates of birth of employees under 

age 19, their daily starting and quitting times, their daily and weekly hours of work, 

and their occupations. Employers may protect themselves from unintentional violation 

of the child labor provisions by keeping on file an employment or age certificate 

for each young worker to show that the youth is the minimum age for the job. 

Certificates issued under most state laws are acceptable for this purpose. 

Employee Rights 

The FLSA prohibits employers from engaging in oppressive child labor, as defined 

by the Act. The FLSA also gives an employee the right to file a complaint with the 

Wage and Hour Division and testify or in other ways cooperate with an investigation 

or legal proceeding without being fired or discriminated against in any other manner. 

Compliance Assistance Available 

More detailed information, including copies of explanatory brochures and regulatory 

and interpretative materials, may be obtained from the Wage and Hour Division’s 

Web site (www.wagehour.dol.gov) or by contacting the Wage and Hour Division’s 

local offices (www.dol.gov/esa/contacts/whd/america2.htm). Another compliance 

assistance resource, the elaws FLSA Child Labor Rules Advisor (www.dol.gov/elaws/ 

esa/flsa/cl/default.htm), helps answer questions about workers and businesses that 

are subject to federal child labor rules. For additional compliance assistance, contact 

the Wage and Hour Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

Employers are subject to a civil money penalty of up to $11,000 ($10,000 for 

violations occurring prior to January 7, 2002) per worker for each violation of the child 

labor provisions. When a civil money penalty is assessed, employers have the right to 

file an exception to the determination within 15 days of receipt of the notice of such 

19 
penalty. When an exception is filed, it is referred to an Administrative Law Judge for a 

hearing and determination as to whether the penalty is appropriate. Either party may 

appeal the decision of the administrative law judge to the Secretary of Labor. If an 

exception is not timely filed, the penalty becomes final. 

The Act also provides for a criminal fine of up to $10,000 upon conviction for a 

willful violation. For a second conviction for a willful violation, the Act provides for 

a fine of not more than $10,000 and imprisonment for up to six months, or both. 

The Secretary may also bring suit to obtain injunctions to restrain persons from 

violating the Act. 

Relation to State, Local, and Other Federal Laws 

Many states have child labor laws. When both this Act and a state law apply, 

the law setting the higher standards must be observed. 

20 
Occupational Safety and Health

The Occupational Safety and Health Act 

of 1970 (OSH Act) (29 USC §651 et seq.; 

29 CFR Parts 1900 to end) 

Who is Covered 

In general, the Occupational Safety and Health Act (OSH Act) covers all employers 

and their employees in the 50 states, the District of Columbia, Puerto Rico, and other 

U.S. territories. Coverage is provided either directly by the federal Occupational

Safety and Health Administration (OSHA) or by an OSHA-approved state job safety 

and health plan. Employees of the U.S. Postal Service also are covered. 

The Act defines an employer as any “person engaged in a business affecting 

commerce who has employees, but does not include the United States or any 

state or political subdivision of a State.” Therefore, the Act applies to employers 

and employees in such varied fields as manufacturing, construction, longshoring, 

agriculture, law and medicine, charity and disaster relief, organized labor, and private 

education. The Act establishes a separate program for federal government employees 

and extends coverage to state and local government employees only through the 

states with OSHA-approved plans. 

The Act does not cover: 

■ Self-employed persons; 

■ Farms which employ only immediate members of the farmer’s family; 

■ Working conditions for which other federal agencies, operating under the authority 

of other federal laws, regulate worker safety. This category includes most working 

conditions in mining, nuclear energy and nuclear weapons manufacture, and many 

aspects of the transportation industries; and 

■ Employees of state and local governments, unless they are in one of the states 

operating an OSHA-approved state plan. 

Basic Provisions/Requirements 

The Act assigns OSHA two regulatory functions: setting standards and conducting 

inspections to ensure that employers are providing safe and healthful workplaces. 

OSHA standards may require that employers adopt certain practices, means, 

methods, or processes reasonably necessary and appropriate to protect workers 

on the job. Employers must become familiar with the standards applicable to their 

establishments and eliminate hazards. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

21 
Compliance with standards may include ensuring that employees have been 

provided with, have been effectively trained on, and use personal protective 

equipment when required for safety or health. Employees must comply with all 

rules and regulations that apply to their own actions and conduct. 

Even in areas where OSHA has not set forth a standard addressing a specific hazard, 

employers are responsible for complying with the OSH Act’s “general duty” clause. 

The general duty clause [Section 5(a)(1)] states that each employer “shall furnish. . . 

a place of employment which is free from recognized hazards that are causing or 

are likely to cause death or serious physical harm to his employees.” 

The Act encourages states to develop and operate their own job safety and 

health programs. OSHA approves and monitors these “state plans,” which operate 

under the authority of state law. There are currently 22 states and jurisdictions 

operating complete state plans (covering both the private sector and state and 

local government employees) and four (Connecticut, New Jersey, New York, and 

the Virgin Islands) that cover state and local government employees only. States 

with OSHA-approved job safety and health plans must set standards that are at least 

as effective as the equivalent federal standard. Most, but not all of the state plan 

states, adopt standards identical to the federal ones. 

Federal OSHA Standards. Standards are grouped into four major categories: 

general industry (29 CFR 1910); construction (29 CFR 1926); maritime (shipyards, 

marine terminals, longshoring—29 CFR 1915–19); and agriculture (29 CFR 1928). 

While some standards are specific to just one category, others apply across industries. 

Among the standards with similar requirements for all sectors of industry are those 

that address access to medical and exposure records, personal protective 

equipment, and hazard communication. 

■ Access to Medical and Exposure Records: This regulation provides a right of 

access to employees, their designated representatives, and OSHA to relevant 

medical records, including records related to that employee’s exposure to toxic 

substances. 

■ Personal Protective Equipment: This standard, which is defined separately 

for each segment of industry except agriculture, requires employers to provide 

employees with personal equipment designed to protect them against certain 

hazards and to ensure that employees have been effectively trained on the use 

of the equipment. This equipment can range from protective helmets to prevent 

head injuries in construction and cargo handling work, to eye protection, hearing 

protection, hard-toed shoes, special goggles for welders, and gauntlets for 

iron workers. 

■ Hazard Communication: This standard requires manufacturers and importers 

of hazardous materials to conduct hazard evaluations of the products they 

manufacture or import. If a product is found to be hazardous under the terms of 

the standard, the manufacturer or importer must so indicate on containers of the 

material, and the first shipment of the material to a new customer must include a 

material safety data sheet (MSDS). Employers must use these MSDSs to train their 

employees to recognize and avoid the hazards presented by the materials. 

OSHA regulations cover such items as recordkeeping, reporting, and posting. 

■ Recordkeeping: Every employer covered by OSHA who has more than 

10 employees, except for employers in certain low-hazard industries in the 

retail, finance, insurance, real estate, and service sectors, must maintain three 

types of OSHA specified records of job-related injuries and illnesses. 

22 
The OSHA Form 300 is an injury/illness log, with a separate line entry for each 

recordable injury or illness. Such events include work-related deaths, injuries, and 

illnesses other than minor injuries that require only first aid treatment and that do not 

involve medical treatment, loss of consciousness, restriction of work, or transfer to 

another job. Each year, the employer must conspicuously post in the workplace a 

Form 300A, which includes a summary of the previous year’s work-related injuries 

and illnesses. The Form 300A must be posted by February 1 and kept in place until 

at least April 30. 

OSHA Form 301 is an individual incident report that provides added detail about 

each specific recordable injury or illness. An alternative form, such as an insurance 

or workers’ compensation form that provides the same details may be substituted 

for OSHA Form 301. 

Employers with 10 or fewer employees and employers in statistically low-hazard 

industries (listed in 29 CFR 1904, Subpart B) are exempt from maintaining these 

records. Industries currently designated as low-hazard include: automobile 

dealers; apparel and accessory stores; eating and drinking places; most finance, 

insurance, and real estate industries; and certain service industries, such as 

personal and business services, medical and dental offices, and legal, 

educational, and membership organizations. 

However, such employers must keep these records if they receive an annual 

illness and injury survey form either from the Bureau of Labor Statistics (BLS) or 

from OSHA. Employers selected for these surveys, even those usually exempt 

from illness and injury recording requirements, will be notified before the end of 

the prior year to begin keeping records during the year covered by the survey. 

■ Reporting: Each employer, regardless of industry category or the number of its 

employees, must advise the nearest OSHA office of any accident that results in one 

or more fatalities or the hospitalization of three or more employees. The employer 

must so notify OSHA within eight hours of the occurrence of the accident. OSHA 

often investigates such accidents to determine whether violations of standards 

contributed to the event. 

Cooperative Programs: OSHA offers a number of opportunities for employers, 

employees, and organizations to work cooperatively with the Agency. OSHA’s major 

cooperative programs are the Voluntary Protections Program (VPP), the Safety and 

Health Achievement Recognition Program (SHARP), the Alliance Program, and the 

OSHA Strategic Partnership Program (OSPP). For further information on OSHA’s 

cooperative programs, visit the Cooperative Programs section of OSHA’s Web site 

(http://www.osha.gov/dcsp/compliance_assistance/index_programs.html). 

■ Voluntary Protection Programs. The Voluntary Protection Programs (VPP) are an 

OSHA initiative aimed at extending worker protection beyond the minimum 

required by OSHA standards. The VPP is designed to: 

• Recognize the outstanding achievements of those who have successfully

incorporated comprehensive safety and health programs into their total

management systems;

• Motivate others to achieve excellent safety and health results in the same

outstanding way; and

• Establish a relationship between employers, employees, and OSHA that is

based on cooperation rather than coercion.

23 
An employer may apply for VPP at the nearest OSHA regional office. OSHA 

reviews an employer’s VPP application and visits the worksite to verify that the 

safety and health program described is in effect at the site. All participants 

must send their injury information annually to their OSHA regional offices. 

Sites participating in the VPP are not scheduled for programmed inspections. 

However, OSHA handles any employee complaints, serious accidents, or 

significant chemical releases according to routine procedures. 

The VPP is available in states under federal jurisdiction. Some states operating 

OSHA-approved state plans have similar programs. Interested companies in 

these states should contact the appropriate state agency for more information. 

■ Safety and Health Achievement Recognition Program (SHARP). This program 

recognizes small employers who operate an exemplary safety and health 

management system. Employers who are accepted into SHARP are recognized 

as models for worksite safety and health. Upon receiving SHARP recognition, the 

worksite will be exempt from programmed inspections during the period that the 

SHARP certification is valid. To participate in SHARP, an employer must contact its 

state’s Consultation Program and request a free consultation visit that involves a 

complete hazard identification survey. 

■ Alliance Program. This program enables trade or professional organizations, 

businesses, labor organizations, and educational institutions that share an interest 

in workplace safety and health to collaborate with OSHA to prevent injuries and 

illnesses in the workplace. OSHA and the organization sign a formal agreement 

with goals that address training and education, outreach and communication, 

and promoting the national dialogue on workplace safety and health. 

■ Strategic Partnership Program. In this program, OSHA enters into an extended, 

voluntary, cooperative relationship with employers, associations, unions, and 

councils, and sometimes, entire industries. Partner worksites may be very large, 

but most often they are small businesses averaging 50 or fewer employees. 

Strategic Partnerships are designed to encourage, assist, and recognize efforts 

to eliminate serious hazards and achieve a high level of worker safety and health. 

All Partnerships emphasize sustained efforts and continuing results beyond the 

typical three-year duration of the agreement. 

Employee Rights 

The Act grants employees several important rights. Among them are the right to 

complain to OSHA about safety and health conditions in their workplaces and, to 

the extent permitted by law, have their identities kept confidential from employers, 

contest the amount of time OSHA allows for correcting violations of standards, 

and participate in OSHA workplace inspections. 

Private sector employees who exercise their rights under OSHA can be protected 

against employer reprisal, as described in Section 11(c) of the OSH Act. Employees 

must notify OSHA within 30 days of the time they learned of the alleged discriminatory 

action. OSHA will then investigate, and if it agrees that discrimination has occurred, 

OSHA will ask the employer to restore any lost benefits to the affected employee. 

If necessary, OSHA can initiate legal action against the employer. In such cases, the 

worker pays no legal fees. 

The OSHA-approved state plans have parallel employee rights provisions, including 

protections against employer reprisal. 

24 
Compliance Assistance Available 

■ Standards: The Federal Register is an excellent source of information on 

standards, since all OSHA standards are published there when made final, as are 

all amendments, corrections, insertions and deletions. OSHA also provides copies 

of its Federal Register notices on its Web site (www.osha.gov). 

OSHA’s regulations and standards are collected in several volumes in Title 29 CFR, 

Parts 1900–1999, and are available on OSHA’s Web page on standards (www.osha. 

gov/pls/oshaweb/owasrch.search_form?p_doc_type=STANDARDS&p_toc_level= 

0&p_keyvalue=). To help the public understand and apply its standards and 

regulations, OSHA provides a number of print and Web-based tools, including 

fact sheets, booklets, Expert Advisors, eTools, and Safety and Health Topics pages. 

OSHA has a compliance assistance section on its Web site (www.osha.gov/dcsp/ 

compliance_assistance/index.html) that provides links to these materials. 

Because states with OSHA-approved job safety and health programs adopt and 

enforce their own standards under state law, copies of these standards can be 

obtained from the individual states. Many are available through state Web sites, 

which are linked from OSHA’s Web site (www.osha.gov). 

■ Training and Education: OSHA has more than 70 full-service field offices that 

offer a variety of informational services, such as publications, technical advice, 

audio-visual aids on workplace hazards, and lecturers for speaking engagements. 

Each of these field offices has an OSHA Compliance Assistance Specialist (CAS). 

CASs provide general information about OSHA standards and compliance 

assistance resources, and are available for seminars, workshops, and speaking 

events. CASs promote OSHA’s cooperative programs and also encourage 

employers to take advantage of OSHA’s training resources and the tools 

available on the OSHA Web site (www.osha.gov). 

The OSHA Training Institute in Arlington Heights, Illinois, provides basic and 

advanced training and education in safety and health for federal and state 

compliance safety and health officers; state consultants; other federal agency 

personnel; and private sector employers, employees, and their representatives. 

Course topics include electrical hazards, machine guarding, ventilation, and 

ergonomics, among others. 

The Institute’s facility includes classrooms, laboratories, a library, and an 

audio-visual unit. The laboratories contain various demonstrations and equipment, 

such as power presses, woodworking, and welding shops, a complete industrial 

ventilation unit, and a noise demonstration laboratory. Sixty-one courses are 

available for students from the private sector addressing subjects such as safety 

and health in the construction industry and methods of voluntary compliance 

with OSHA standards. 

The OSHA Training Institute has partnered with other training and education 

institutes to conduct Training Institute courses. These Education Centers, which 

are located throughout the country, provide additional opportunities for the public 

to receive training on safety and health topics. 

Under its Susan Harwood grant program, OSHA also provides funds to nonprofit 

organizations to develop training and education materials and to provide training 

to employers and employees. 

Organizations awarded grants use the funds to develop training and educational 

programs, reach out to workers and employers for whom their programs are 

25 
appropriate, and distribute the programs to employers and employees. The Training 

Institute is OSHA’s point of contact for learning about the many valuable training 

products and materials developed under such grants. 

While OSHA does not distribute grant materials directly, it provides addresses and 

telephone numbers of persons from whom the public can order such materials. 

However, OSHA does provide limited lending of grant-produced audio-visual 

training programs through the Resource Center Audiovisual Circulation Project. 

Contact the OSHA Training Institute at 847–297–4810 or visit the Training Page 

on OSHA’s Web site (www.osha.gov). 

■ Consultation Services: Consultation assistance is available to employers who 

want help in establishing and maintaining safe and healthful workplaces. Largely 

funded by OSHA, the service is available in every state and territory. It is provided 

at no cost to the employer. Primarily targeted toward smaller employers with more 

hazardous operations, the consultation service is delivered by state government 

agencies or universities employing professional safety consultants and health 

consultants. On-site OSHA consultation assistance includes an opening 

conference with the employer to explain the ground rules for consultation, 

a walk through the workplace to identify specific hazards and to examine those 

aspects of the employer’s safety and health program that relate to the scope of the 

visit, and a closing conference. Later, the consultant sends a report of findings and 

recommendations to the employer. Unlike OSHA’s enforcement program, there 

are no citations or penalties issued. 

This process begins with the employer’s request for consultation, which must 

include a commitment to correct any serious job safety and health hazards 

identified. The consultant will not report possible violations of OSHA standards to 

OSHA enforcement staff unless the employer fails or refuses to eliminate or control 

worker exposure to any identified serious hazard or imminent danger. Should this 

occur, OSHA may investigate and begin enforcement action. The employer must 

also agree to allow the consultant to confer freely with employees during the 

on-site visit. 

Additional information about consultation assistance, including a directory of

OSHA-funded consultation projects, can be found on OSHA’s Web site

(www.osha.gov).

■ Information Sources: Information about state plans, VPPs, consultation programs, 

and inspections can be obtained from the nearest OSHA regional or area office. 

Area offices are listed in local telephone directories under the U.S. Department of 

Labor. Contact information for regional and area offices, as well as state plans and 

consultation programs can be found on the OSHA Web site (www.osha.gov). 

OSHA also has a toll-free number: 1–800–321–OSHA (6742). This number is

available 24 hours a day. Spanish-speaking operators are available. The public

may also submit questions to OSHA via e-mail or regular mail. Visit the OSHA

Contact Us page (www.osha.gov/html/Feed_Back.html) for the various ways to

contact the agency.

The OSHA Home Page (www.osha.gov) contains information on other OSHA 

activities, statistics, media releases, and compliance assistance, as well as links to 

other safety and health Web sites. OSHA has a number of interactive advisors to 

help employers comply with OSHA standards. 

A variety of information is available on OSHA’s Publications Web site (www.osha. 

gov/pls/publications/pubindex.list), including online publication order forms, the 

26 
OSHA poster, guidance on OSHA recordkeeping, and online access to several 

OSHA publications in PDF format. Publications can also be ordered from the 

OSHA Publications Office at (202) 693–1888. 

OSHA’s Office of Small Business Assistance administers OSHA’s On-Site 

Consultation Program and serves as liaison and point of contact with the Agency 

for small businesses. OSHA offers many services designed to help small businesses 

and welcomes comments and suggestions from small business owners and their 

employees. 

Questions about OSHA programs, the status of ongoing standards-setting activities, 

and general inquiries about OSHA may be addressed to the U.S. Department of 

Labor, OSHA Office of Communications, 200 Constitution Avenue NW, Room 

N-3637, Washington, D.C. 20210; telephone 202–693–1999. 

Penalties/Sanctions 

Every establishment covered by the Act is subject to inspection by OSHA 

compliance safety and health officers (CSHOs). These individuals, who are chosen 

for their knowledge and experience in occupational safety and health, are thoroughly 

trained in OSHA standards and in the recognition of occupational safety and health 

hazards. In states with their own OSHA-approved state plan, pursuant to state law, 

state officials conduct inspections, issue citations for violations and propose penalties 

in a manner that is at least as effective as the federal program. 

OSHA conducts two general types of inspections, programmed and unprogrammed. 

Establishments with high injury rates receive programmed inspections, while 

unprogrammed inspections are used in response to fatalities, catastrophes, and 

complaints (which are further addressed by OSHA’s complaint policies and 

procedures). Various OSHA publications and documents detail OSHA’s policies 

and procedures for inspections. 

Types of violations that may be cited and the penalties that may be proposed: 

The OSH Act authorizes OSHA to treat certain violations, which have no direct or 

immediate relationship to safety and health, as de minimus, requiring no penalty or 

abatement. OSHA does not issue citations for de minimus violations. 

■ Other-Than-Serious Violation: A violation that has a direct relationship to job 

safety and health, but probably would not cause death or serious physical harm. 

A proposed penalty of up to $7,000 for each violation is discretionary. 

■ Serious Violation: A violation where a substantial probability that death or serious 

physical harm could result and where the employer knew, or should have known, 

of the hazard. A penalty of up to $7,000 for each violation must be proposed. 

■ Willful Violation: A violation that the employer intentionally and knowingly commits. 

The employer either knows that what he or she is doing constitutes a violation, or 

is aware that a condition creates a hazard and has made no reasonable effort to 

eliminate it. The Act provides that an employer who willfully violates the Act may 

be assessed a civil penalty of not more than $70,000 but not less than $5,000 for 

each violation. Proposed penalties for other-than-serious and serious violations may 

be adjusted downward depending on the employer’s good faith (demonstrated 

efforts to comply with the Act through the implementation of an effective health 

and safety program), history of violations, and size of business. Proposed penalties 

for willful violations may be adjusted downward depending on the size of the 

business. Usually no credit is given for good faith. 

27 
If an employer is convicted of a willful violation of a standard that has resulted in 

the death of an employee, the offense is punishable by a court-imposed fine or 

by imprisonment for up to six months, or both. A fine of up to $250,000 for an 

individual, or $500,000 for an organization [authorized under the Omnibus Crime 

Control Act of 1984 (1984 OCCA), not the OSH Act], may be imposed for a 

criminal conviction. 

■ Repeated Violation: A violation of any standard, regulation, rule, or order where, 

upon reinspection, a substantially similar violation is found. Repeated violations 

can bring fines of up to $70,000 for each such violation. To serve as the basis for 

a repeat citation, the original citation must be final; a citation under contest may 

not serve as the basis for a subsequent repeat citation. 

■ Failure to Correct Prior Violation: Failure to correct a prior violation may bring 

a civil penalty of up to $7,000 for each day the violation continues beyond the 

prescribed abatement date. 

Citation and penalty procedures may differ somewhat in states with their own 

OSH programs. 

Appeals process: 

■ Appeals by Employees: If a complaint from an employee prompted the 

inspection, the employee or authorized employee representative may request 

an informal review of any decision not to issue a citation. 

Employees may not contest citations, amendments to citations, penalties, or lack 

of penalties. They may contest the time allowed in the citation for abatement of a 

hazardous condition. They also may contest an employer’s Petition for Modification 

of Abatement (PMA), which requests an extension of the abatement period. 

Employees who wish to contest the PMA must do so within 10 working days of 

its posting or within 10 working days after an authorized employee representative 

has received a copy. 

Within 15 working days of the employer’s receipt of the citation, the employee 

may submit a written objection to OSHA regarding the abatement date. The OSHA 

area director forwards the objection to the Occupational Safety and Health Review 

Commission, which operates independently of OSHA. 

Employees may request an informal conference with OSHA to discuss any issues 

raised by an inspection, citation, notice of proposed penalty, or the employer’s 

notice of intention to contest. 

■ Appeals by Employers: When issued a citation or notice of a proposed penalty, 

an employer may request an informal meeting with OSHA’s area director to discuss 

the case. Employee representatives may be invited to attend the meeting. To avoid 

prolonged legal disputes, the area director is authorized to enter into settlement 

agreements that may revise citations and penalties. 

■ Notice of Contest: If the employer decides to contest the citation, the time set for 

abatement, or the proposed penalty, he or she has 15 working days from the time 

the citation and proposed penalty are received in which to notify the OSHA area 

director in writing. An orally expressed disagreement will not suffice. This written 

notification is called a “Notice of Contest.” 

There is no specific format for the Notice of Contest. However, it must clearly 

identify the employer’s basis for contesting the citation, notice of proposed penalty, 

28 
abatement period, or notification of failure to correct violations. To better identify 

the scope of the contest, it also should identify the inspection number and citation 

number(s) being contested. 

A copy of the Notice of Contest must be given to the employees’ authorized 

representative. If any affected employees are unrepresented by a recognized 

bargaining agent, a copy of the notice must be posted in a prominent location in 

the workplace, or else served personally upon each unrepresented employee. 

■ Appeal Review Procedure: If the written Notice of Contest has been filed 

within 15 working days, the OSHA area director forwards the case to the 

Occupational Safety and Health Review Commission (OSHRC). The Commission 

is an independent agency not associated with OSHA or the Department of Labor. 

The Commission assigns the case to an Administrative Law Judge (ALJ). 

The ALJ may disallow the contest if it is found to be legally invalid, or a

hearing may be scheduled for a public place near the employer’s workplace.

The employer and the employees have the right to participate in the hearing;

the OSHRC does not require that they be represented by attorneys.

Once the ALJ has ruled, any party to the case may request a further review by 

OSHRC. Also, any of the three OSHRC commissioners may individually move to 

bring a case before the Commission for review. Commission rulings may be 

appealed to the U.S. Courts of Appeals. 

■ Appeals In State-Plan States: States with their own occupational safety and 

health programs have their own systems for review and appeal of citations, 

penalties, and abatement periods. The procedures are generally similar to 

federal OSHA’s, but a state review board or equivalent authority hears cases. 

Relation to State, Local, and Other Federal Laws 

The OSH Act covers all private sector working conditions that are not addressed 

by safety and health regulations of another federal agency under other legislation. 

OSHA also has the authority to monitor the safety and health of federal employees. 

The OSHA-approved state-plan states extend their coverage to state and local 

government employees. 

Finally, OSHA is also responsible for administering a number of whistleblower laws 

relating to safety and health as described in the Whistleblower Protection section of 

this Guide. 

29 
Mine Safety and Health

The Federal Mine Safety and Health Act 

of 1977 (Mine Act) (30 USC §§ 801 et seq.; 

30 CFR Parts 1 to 199) 

Who is Covered 

The Federal Mine Safety and Health Act (Mine Act) covers all mine operators 

and miners throughout the United States, including the District of Columbia, the 

Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, and the 

Trust Territory of the Pacific Islands. Under the Mine Act, a mine “operator” is defined 

as: “any owner, lessee, or other person who operates, controls, or supervises a coal 

or other mine or any independent contractor performing service or construction at 

such mine.” A “miner” is any individual working in a coal or other mine. At this time, 

the Mine Act covers approximately 300,000 miners and almost 14,000 mines. 

Basic Provisions/Requirements 

The Mine Act requires that the Mine Safety and Health Administration (MSHA) 

inspect all mines each year. All underground mines are to receive at least four 

inspections annually; all surface operations are to be inspected at least twice 

annually. MSHA is specifically prohibited from giving advance notice of an 

inspection, and it is specifically authorized to enter mine property without 

a warrant. 

The Mine Act requires or authorizes additional inspections and investigations to 

ensure safe and healthy work environments for miners. For example, mines that 

release large amounts of methane gas are to receive more frequent inspections; 

mines determined to be exceptionally hazardous may receive more frequent 

inspections. Additionally, MSHA must investigate all fatal accidents and miners’ 

complaints of discrimination based upon the exercise of their rights under the 

Mine Act. 

To promote compliance with the provisions of the Act and its safety and health 

standards, all violations found during inspections and investigations must be cited. 

All violations are subject to civil penalties, and all violations must be corrected 

within the time frames established by MSHA. 

The Mine Act permits representatives of the operator and the miners to accompany 

MSHA during inspections and participate in pre- and post-inspection conferences. 

If violations are cited, the circumstances surrounding the violations are discussed 

during post-inspection conferences. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

30 
If these discussions do not result in resolution, the mine operator may appeal the 

citation and the penalty to the Federal Mine Safety and Health Review Commission, 

an independent body, with further appeal to the U.S. Courts of Appeals. 

In addition to setting safety and health standards for preventing hazardous and 

unhealthy conditions, MSHA’s regulations establish requirements for immediate 

notification of accidents, injuries, and illnesses; for training programs that meet 

the statutory requirements of the Mine Act; and for obtaining approval for certain 

equipment used in gassy underground mines. 

Mine operators must notify MSHA when they open or close a mine, and they 

may request the modification of an existing safety standard on a site-by-site basis. 

Under the Mine Act, MSHA may approve modifications only if it determines that 

the alternate method proposed will guarantee no less than the same measure of 

protection afforded by the existing standards, or that the application of MSHA’s 

standard at the mine will result in a diminution of safety for miners. 

Employee Rights 

A good safety and health program depends on the active participation and 

interest of everyone at a worksite. Because Congress wants to encourage an active, 

responsible role for all parties in matters of mine safety and health, the Federal Mine 

Safety and Health Act of 1977 gives individual miners, their representatives, and 

job applicants many rights. Deaths, injuries, and illnesses in the workplace can be 

decreased if all parties take advantage of these rights. 

The Act gives miners the rights to: 

■ Designate a representative to accompany federal inspectors during inspections 

at a mine; 

■ Obtain an inspection of the mine where reasonable grounds exist to believe that 

an imminent danger, or a violation of the Act or of a safety or health standard exists; 

■ Receive health and safety training; 

■ Be paid during certain periods of time when a mine or part of a mine has been 

closed because of a withdrawal order; 

■ Be protected against discrimination based on the exercise of rights under the 

Act; and 

■ Be informed of, and participate in, enforcement and legal proceedings under 

the Act. 

Miners’ representatives also have specific rights under the Act in addition to those 

rights given to individual miners. Moreover, applicants for mine work have the right 

not to be discriminated against in hiring because they have previously exercised 

rights provided under the Act. 

If a miner, representative of miners, or job applicant, has general or specific 

questions about rights under the Act, he or she should contact the nearest MSHA 

office. The MSHA Web site (www.msha.gov) lists locations and telephone numbers 

for its offices nationwide. 

31 
Compliance Assistance Available 

MSHA develops safety and health training programs in cooperation with industry and 

labor, tests new mining equipment, works with other agencies to advance safety and 

health research programs, and compiles and analyzes accident, injury, and illness 

data to better address serious workplace hazards. 

MSHA has developed booklets, pamphlets, and pocket-size laminated cards, 

which address known safety and health hazards and identify acceptable compliance 

processes. MSHA routinely distributes its accident prevention materials to the mining 

industry at large, or to those sectors of the industry that are experiencing the injuries 

addressed by the materials. 

MSHA’s Web site (www.msha.gov) contains compliance assistance information, 

guidance, and helpful tips for the mining community. For example, it lists upcoming 

seminars designed for mine operators and others to receive the latest information 

about the requirements of a rule or to hear about solutions to various safety and 

health problems. 

Also, the Web site provides model forms, records, and plans for the mine operator to 

use to comply with MSHA requirements, thus avoiding the need for the operator to 

create these items independently. Through the Web site, mine operators may file 

various reports directly with MSHA. 

MSHA’s Small Mine Office (SMO) (www.msha.gov/smallmineoffice/smallmine 

office.htm) works closely, on-site, with mine operators having 5 or fewer employees 

to develop and implement health and safety programs tailored to identify and 

eliminate hazards at their operations. The wide variety of health and safety services 

offered include a worksite analysis of safety and health conditions, assistance in 

developing a written health and safety program, and safety and health toolbox 

talks for training employees. 

The Alliance Program (www.msha.gov/alliances/alliances.htm) enables trade 

associations or professional societies, labor organizations, educational institutions, 

and other similar stakeholders that share an interest in miner safety and health to 

collaborate with MSHA to prevent injuries and illnesses in the nation’s mines. MSHA 

and the organizations sign a voluntary agreement with goals that address training 

and education, outreach and communication, technical assistance, and promote 

national dialogue on mine safety and health. 

The Mine Act authorizes a state grants program, funded at about $7.6 million annually, 

which MSHA administers. MSHA works with the states to stimulate the development 

of individual state programs that focus on identifiable safety and health problems. 

Many of the states use the grants for education and training, particularly for smaller 

mining operations that cannot provide updated, effective training. 

MSHA’s Mine Health and Safety Academy, located in Beckley, West Virginia, 

develops and provides safety and health training courses for its own inspectors 

as well as for industry and labor. A “Mine Simulation Laboratory,” located on the 

Academy grounds, provides hands-on training in rescue and recovery operations 

for certain mine emergencies. 

MSHA’s Approval and Certification Center (A&CC), located near Wheeling, West 

Virginia, houses laboratories, equipment, and personnel to test equipment that must 

be approved before it can be used in certain areas of gassy underground mines. 

The A&CC also is responsible for monitoring the performance of approved products 

to ensure that they meet the standards under which they were originally approved. 

32 
A variety of information on MSHA’s programs, as well as its existing and proposed 

standards, can be found on MSHA’s Web site (www.msha.gov). Also, MSHA has a 

number of elaws Advisors (www.dol.gov/elaws/mining.html) that provide assistance 

in understanding and applying MSHA’s regulations. 

MSHA maintains a 24-hour toll-free telephone number that can be used to report 

accidents. That number is 1– 800 –746–1553. MSHA maintains another toll-free 

number to report hazardous conditions. That number is 1–800–746–1554, and 

the caller need not identify himself or herself. The appropriate MSHA district office 

(www.msha.gov/district/disthome.htm) also can be contacted. 

Additional information about MSHA, its programs and policies may be obtained 

from the MSHA Office of Information, Room 601, 4015 Wilson Boulevard, 

Arlington, Virginia, 22203-1984. The telephone number is 202–693–9422. 

Penalties/Sanctions 

The Mine Act established a maximum penalty of $10,000 per violation against 

mine operators for violations found and cited. As a result of the Omnibus Budget 

Reconciliation Act of 1990, the maximum was increased to $55,000. 

Non-serious violations (violations that are not designated “significant and substantial”) 

that are promptly corrected normally receive a “single penalty” assessment of $55. 

More serious violations and non-serious violations that are not promptly corrected are 

usually assessed using a formula that incorporates six criteria specified for determining 

penalty amounts by the Mine Act. 

Some violations are of such a nature or seriousness that use of the formula would 

not result in an appropriate penalty. In these cases—most often involving fatalities, 

serious injuries, and unwarranted failure to comply with standards— MSHA may 

waive the formula and propose a “special assessment.” In developing such an 

amount, the facts are independently reviewed to determine a penalty amount 

that will have the deterrent effect contemplated by the Statute. Title 30, Part 100 

of the Code of Federal Regulations contains the regulations governing the civil 

penalty process. 

The Mine Act also provides for either civil penalties against individuals for “knowing” 

violations, or criminal sanctions against mine operators who “willfully” violate safety 

and health standards. MSHA reviews particular citations and orders for possible 

knowing or willful violations. In general, the violations reviewed include those 

involving imminently dangerous situations and a high degree of negligence or 

reckless disregard. MSHA initiates and conducts investigations of possible knowing 

or willful violations. If evidence of willful violations is found, the case is referred to 

the Department of Justice. 

Relation to State, Local, and Other Federal Laws 

The Mine Act does not give MSHA the authority to cede its responsibilities to states 

or any other political subdivisions. The Mine Act does not preempt state mine safety 

and health laws, except insofar as they may conflict with the Mine Act or MSHA’s 

regulations. States may have more stringent health and safety standards. 

33 
Employee Benefit Plans

Employee Retirement Income Security 

Act (ERISA), (29 USC §1001 et seq., 

29 CFR Parts 2509 et seq.) 

Who is Covered 

The provisions of Title I of the Employee Retirement Income Security Act (ERISA) 

cover most private sector employee benefit plans. Such plans are voluntarily 

established and maintained by an employer, an employee organization, or jointly 

by one or more such employers and an employee organization. 

Pension plans—a type of employee benefit plan—are established and maintained 

to provide retirement income or to defer income until termination of covered 

employment or beyond. Other employee benefit plans, called welfare plans, are 

established and maintained to provide health benefits, disability benefits, death 

benefits, prepaid legal services, vacation benefits, day care centers, scholarship 

funds, apprenticeship and training benefits, or other similar benefits. 

In general, ERISA does not cover plans established or maintained by government 

entities or churches for their employees, or plans which are maintained solely to 

comply with workers’ compensation, unemployment, or disability laws. ERISA also 

does not cover plans maintained outside the United States primarily for the benefit 

of nonresident aliens or unfunded excess benefit plans. 

Basic Provisions/Requirements 

ERISA sets uniform minimum standards to ensure that employee benefit plans are 

established and maintained in a fair and financially sound manner. In addition, 

employers have an obligation to provide promised benefits and satisfy ERISA’s 

requirements for managing and administering private pension and welfare plans. 

The Department’s Employee Benefits Security Administration (EBSA), together with 

the Internal Revenue Service (IRS), has the statutory and regulatory authority to ensure 

that workers receive the promised benefits. The Department has principal jurisdiction 

over Title I of ERISA, which requires persons and entities that manage and control 

plan funds to: 

■ Manage plans for the exclusive benefit of participants and beneficiaries; 

■ Carry out their duties in a prudent manner and refrain from conflict-of-interest 

transactions expressly prohibited by law; 

■ Comply with limitations on certain plans’ investments in employer securities 

and properties; 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

34 
■ Fund benefits in accordance with the law and plan rules; 

■ Report and disclose information on the operations and financial condition of plans 

to the government and participants; and 

■ Provide documents required in the conduct of investigations to ensure compliance 

with the law. 

The Department also has jurisdiction over the prohibited transaction provisions of 

Title II of ERISA. However, the IRS generally administers the rest of Title II of ERISA, 

as well as the standards of Title I of ERISA that address vesting, participation, 

nondiscrimination, and funding. 

Reporting and Disclosure. Any individual or organization affected by ERISA may 

request an advisory opinion or information letter about the interpretation or application 

of the statutory provisions (or the implementing regulations, interpretive bulletins, or 

exemptions) within the Department’s jurisdiction. ERISA Procedure 76-1, 41 Federal 

Register 36281 (August 27, 1976) sets forth the procedures governing the advisory 

opinion process. 

Part 1 of Title I requires the administrator of an employee benefit plan to furnish 

participants and beneficiaries with a summary plan description (SPD), clearly 

describing their rights, benefits, and responsibilities under the plan. Plan administrators 

must also furnish participants with a summary of any material changes to the plan or 

changes to the information contained in the SPD. Copies of these documents need 

not be automatically filed with the Department, but they must be furnished to the 

Department on request. 

In addition, the administrator generally must file an annual report (Form 5500 Series) 

each year containing financial and other information about the operation of the plan. 

Plan administrators filing annual reports must furnish participants and beneficiaries 

with a summary of the information in the annual report (the Summary Annual Report). 

Certain pension and welfare benefit plans may be exempt from the requirement to file 

an annual report. For example, welfare benefit plans with fewer than 100 participants 

that are fully insured or unfunded within the meaning of the Department’s regulation 

at 29 CFR 2520.104-20 are not required to file an annual report. 

The Department’s regulations governing these reporting and disclosure requirements 

are set forth beginning at 29 CFR 2520.1011. 

Fiduciary Standards. Part 4 of Title I sets forth standards and rules for the conduct of 

plan fiduciaries. In general, persons who exercise discretionary authority or control 

over management of a plan or disposition of its assets are “fiduciaries” for purposes 

of Title I of ERISA. Fiduciaries are required, among other things, to discharge their 

duties solely in the interest of plan participants and beneficiaries and for the exclusive 

purpose of providing benefits and defraying reasonable expenses of administering 

the plan. In discharging their duties, fiduciaries must act prudently and in accordance 

with documents governing the plan, to the extent such documents are consistent 

with ERISA. 

ERISA prohibits certain transactions between an employee benefit plan and “parties 

in interest,” which include the employer and others who may be in a position to 

exercise improper influence over the plan, and such transactions may trigger civil 

monetary penalties under Title I of ERISA. The Internal Revenue Code (“Code”) also 

prohibits most of these transactions, and it imposes an excise tax on “disqualified 

persons” (whose definition generally parallels that of parties in interest) who 

participate in such transactions. 

35 
Exemptions. Both ERISA and the Code contain various statutory exemptions from 

the prohibited transaction rules and give the Departments of Labor and Treasury, 

respectively, authority to grant administrative exemptions and establish exemption 

procedures. Reorganization Plan No. 4 of 1978 transferred the Treasury Department’s 

authority over prohibited transaction exemptions to the Labor Department, with 

certain exceptions. 

The statutory exemptions generally include loans to participants, the provision of 

services needed to operate a plan for reasonable compensation, loans to employee 

stock ownership plans, and investment with certain financial institutions regulated 

by other state or federal agencies. (See ERISA Section 408 for the conditions of the 

exemptions.) The Department of Labor may grant administrative exemptions on a 

class or individual basis for a wide variety of proposed transactions with a plan. 

Applications for individual exemptions must include, among other information: 

■ A detailed description of the exemption transaction and the parties for whom an 

exemption is requested; 

■ The reasons a plan would have for entering into the transaction; 

■ The percentage of assets involved in the exemption transaction; 

■ The names of persons with investment discretion; 

■ The extent of plan assets already invested in loans to, property leased by, and 

securities issued by parties in interest involved in the transaction; 

■ Copies of all contracts, agreements, instruments, and relevant portions of plan 

documents and trust agreements bearing on the exemption transaction; 

■ Information about plan participation in pooled funds when the exemption 

transaction involves such funds; 

■ A declaration by the applicant, under penalty of perjury, attesting to the truth of 

representations made in such exemption submissions; and 

■ Statement of consent by third-party experts acknowledging that their statement 

is being submitted to the Department as part of an exemption application. 

The Department’s exemption procedures are set forth at 29 CFR 2570.30 through 

2570.51. 

Continuation of Health Coverage. The Consolidated Omnibus Budget Reconciliation 

Act of 1985 (COBRA) included provisions for continuing health care coverage. These 

provisions, which are codified in Part 6 of Title I of ERISA, apply to group health plans 

of employers with 20 or more employees on a typical working day in the previous 

calendar year. 

COBRA gives “qualified beneficiaries” (a covered employee’s spouse and 

dependent children) the right to maintain, at their own expense, coverage under 

their health plan that would be lost due to a “qualifying event,” such as termination 

of employment, at a cost comparable to what it would be if they were still members 

of the employer’s group. 

Plans must give covered individuals an initial general notice informing them of their 

rights under COBRA and describing the law. The law also obliges plan administrators, 

employers, and qualified beneficiaries to provide notice of certain “qualifying events.” 

36 
In most instances of employee death, termination, reduced hours of employment, 

entitlement to Medicare, or bankruptcy, the employer must provide a specific notice 

to the plan administrator. The plan administrator must then advise the qualified 

beneficiaries of the opportunity to elect continuation coverage. 

The Department’s regulatory and interpretive jurisdiction over the COBRA provisions 

is limited to the COBRA notification and disclosure provisions. 

Jurisdiction of the Internal Revenue Service. The IRS has regulatory and interpretive 

responsibility for all provisions of COBRA not under the Department’s jurisdiction. 

In addition, the IRS generally administers and interprets the ERISA provisions relating 

to participation, vesting, funding, and benefit accrual, contained in parts 2 and 3 of 

Title I. 

Health Insurance Portability and Accountability Act of 1996. The Health Insurance 

Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, was enacted 

on August 21, 1996. HIPAA amended ERISA to provide for improved portability 

and continuity of health insurance coverage connected with employment, among 

other things. 

The HIPAA portability provisions relating to group health plans and health insurance 

coverage offered in connection with group health plans are set forth under a new 

Part 7 of Subtitle B of Title I of ERISA. These provisions include rules relating to 

exclusions of preexisting conditions, special enrollment rights, and prohibition of 

discrimination against individuals based on health status-related factors. 

The Newborns’ and Mothers’ Health Protection Act of 1996, signed into law on 

September 26, 1996, requires plans that offer maternity coverage to pay for at least 

a 48-hour hospital stay following childbirth (a 96-hour stay when a cesarean section 

is performed). 

The Women’s Health and Cancer Rights Act, signed into law on October 21, 1998, 

contains protection for patients who elect breast reconstruction in connection with a 

mastectomy. For plan participants and beneficiaries receiving benefits in connection 

with a mastectomy, plans offering coverage for a mastectomy must also cover 

reconstructive surgery and other benefits related to a mastectomy. 

Employee Rights 

The Act grants employees several important rights. Among them are the right to 

receive important information about their pension or health benefit plans, to 

participate in timely and fair processes for benefit claims, to elect to temporarily 

continue group health coverage after losing coverage, to receive certificates verifying 

health coverage under a plan, and to recover benefits due under the plan. 

Compliance Assistance Available 

EBSA has numerous general publications designed to help employers and 

employees understand their obligations and rights under ERISA. A list of EBSA 

booklets and pamphlets is available by writing to: U.S. Department of Labor, 

Publications Desk, EBSA, Division of Public Affairs, Room N5656, 200 Constitution 

Avenue NW, Washington, D.C. 20210. Many of these documents are available from 

EBSA’s Home Page (www.dol.gov/ebsa) and through EBSA’s toll-free publications 

line at 1–800–998–7542. 

37 
The elaws Small Business Retirement Savings Advisor, available at www.dol.gov/ 

elaws/pwbaplan.htm, provides answers to a variety of questions about retirement 

savings options for small business employers and indicates which program is most 

appropriate for a business. 

EBSA’s national and field offices offer individualized assistance for persons seeking 

information and assistance on benefits and rights under employee benefit plans. 

EBSA also issues advisory opinions and information letters in response to requests 

from individuals and organizations. Advisory opinions apply the law to a specific set 

of facts, while information letters merely call attention to well-established principles 

or interpretations. Further information about these programs is contained in EBSA’s 

booklet on “Customer Service Standards.” 

In addition, employee benefit plan documents and other materials are available 

from the EBSA Public Disclosure Room. This facility may be used to view and to 

obtain copies of materials on file. Materials include: summary plan descriptions, 

Form 5500 Series reports, Master Trust reports, 10312 Investment Entity Reports, 

Common or Collective Trust or Pooled Separate Account direct filings, Apprentice 

and Other Training Plans notices, “Top Hat” plan statements, advisory opinions, 

exemptions, announcements, and transcripts of public hearings and proceedings. 

The EBSA Public Disclosure Room is open to the public Monday through Friday, from 

8:30 a.m. to 4:30 p.m. Copies of materials are available at a cost of 15 cents per page 

by ordering in person or writing to: U.S. Department of Labor, EBSA Public Disclosure 

Room, Room N1513, 200 Constitution Avenue NW, Washington, D.C. 20210. Given 

the complexity of ERISA requirements, employers may wish to seek the assistance 

of an attorney, CPA firm, investment or brokerage firm, and other employee 

benefit consultants. 

Penalties/Sanctions 

ERISA confers substantial law enforcement responsibilities on the Department. 

Part 5 of Title I of ERISA gives the Department authority to bring a civil action to 

correct violations of the law, provides investigative authority to determine whether 

any person has violated Title I, and imposes criminal penalties on any person who 

willfully violates any provision of Part 1 of Title I. 

EBSA has authority under ERISA Section 502(c)(2) to assess civil penalties for 

reporting violations. A penalty of up to $1,000 per day may be assessed against 

plan administrators who fail or refuse to comply with annual reporting requirements. 

Section 502(i) gives the agency authority to assess civil penalties against parties 

in interest who engage in prohibited transactions with welfare and nonqualified 

pension plans. The penalty can range from five percent to 100 percent of the 

amount involved in a transaction. 

A parallel provision of the Code directly imposes an excise tax against disqualified 

persons, including employee benefit plan sponsors and service providers, who 

engage in prohibited transactions with tax-qualified pension and profit sharing plans. 

Finally, Section 502(l) requires the Department to assess mandatory civil penalties 

equal to 20 percent of any amount recovered with respect to fiduciary breaches 

resulting from either a settlement agreement with the Department or a court order 

as the result of a lawsuit by the Department. 

38 
Relation to State, Local, and Other Federal Laws 

Part 5 of Title I states that the provisions of ERISA Titles I and IV supersede state and 

local laws which “relate to” an employee benefit plan. ERISA, however, does not 

preempt certain state and local laws, including state insurance regulation of multiple 

employer welfare arrangements (MEWAs). MEWAs generally constitute employee 

welfare benefit plans or other arrangements providing welfare benefits to employees 

of more than one employer, not pursuant to a collective bargaining agreement. 

In addition, ERISA’s general prohibitions against assignment or alienation of pension 

benefits do not apply to qualified domestic relations orders. Plan administrators must 

comply with the terms of qualifying orders made pursuant to state domestic relations 

law that award all or part of a participant’s benefit in the form of child support, 

alimony, or marital property rights to an alternative payee (spouse, former spouse, 

child, or other dependent). Finally, group health plans covered by ERISA must 

provide benefits in accordance with the requirements of qualified medical child 

support orders issued under state domestic relations laws. 

39 
Black Lung Compensation

Title IV, Federal Mine Safety and Health Act 

of 1977, as amended (30 USC §901 et seq.; 

20 CFR Parts 718, 722, 725, 726, 727) 

Who is Covered 

The Black Lung Benefits Act (BLBA) provides for monthly payments to and medical 

treatment for coal miners totally disabled from pneumoconiosis (black lung disease) 

arising from employment in or around the nation’s coal mines. The BLBA also 

provides for augmented payments to miners based on the number of his or her 

dependents and to certain survivors of miners who died due to or while totally 

disabled from pneumoconiosis. 

Each coal mine operator is required to pay an excise tax, based on the operator’s 

tonnage and price of coal sold, to support payment of benefits to miners under the 

Act and the cost of administering the Act. In addition, operators must provide for 

the payment of benefits to miners, either directly or through insurance, when they 

are the responsible employer of the miners. 

For purposes of determining responsibility for paying benefits, a coal mine operator 

includes: (1) any owner, lessee, or other person who operates, controls, or 

supervises a coal mine or preparation plant, or (2) any independent contractor 

performing services or construction at a mine, or (3) companies transporting coal 

from mines to preparation plants. 

Basic Provisions/Requirements 

Current and former coal miners (including certain coal transportation and coal mine 

construction workers who were exposed to coal mine dust), and their surviving 

dependents, including surviving spouses, orphaned children, and totally dependent 

parents, brothers and sisters, may file claims for black lung benefits. 

Basic monthly benefits for a totally disabled miner or his or her surviving spouse, as 

well as for claimants with qualified dependents, can be found at www.dol.gov/esa/ 

regs/compliance/owcp/blbene2k.htm. Benefits payments are reduced by the 

amounts received for pneumoconiosis under state workers’ compensation awards 

and by excess earnings in some cases. Benefit rates are adjusted periodically 

according to the percentage increase of federal pay rates. 

Medical payments are limited to the treatment of conditions directly related to black 

lung disease, and only totally disabled former miners can qualify for this benefit. 

The Act covers certain medical, surgical and other expenses, such as hospital and 

nursing care, rehabilitation services, and drug and equipment charges. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

40 
The Black Lung Disability Trust Fund pays the cost of black lung claims: (1) where

the miner’s last coal mine employment was before January 1, 1970; or (2) where no

responsible coal mine operator has been identified in claims where the miner’s last

coal employment was after December 31, 1969; or (3) where the responsible coal

mine operator has defaulted on the payment of such benefits.

Coal mine operators identified as responsible for claims based on employment after

1970 must provide for the required benefits either directly or through insurance.

A tax paid by coal mine operators on each ton sold supports the Trust Fund.

The current rate is $1.10 per ton for underground-mined coal and $.55 for

surface-mined coal, subject to a cap of 4.4 percent of the sales price.

Coal mine operators may secure payment of benefits for which they are liable

either by qualifying as a self-insurer or by obtaining insurance through a commercial

insurance carrier or a state agency. Operators must obtain approval from the

Department of Labor to become self-insurers. To qualify, they must have been in

the business of coal mining for at least three years, demonstrate the ability to

service black lung claims, and agree to service claims in a timely manner, meet

minimum asset requirements, and obtain an indemnity bond or post other security

to secure payment of benefits, among other things. Operators may appeal a denial

to self-insure to the Department of Labor. When operators obtain commercial

insurance, their obligations with regard to payment of benefits, and provision of

medical treatment are binding on the insurance carriers.

Coal mine operators are required to begin paying benefits within 30 days of a final

determination of their liability for the benefits. Where payment is made from the Trust

Fund pending appeal of a claim and final determination, operators must reimburse

the Trust Fund.

Employee Rights 

If an employee, or his or her survivor, or an employer disagrees with a claim 

determination by the Division of Coal Mine Workers’ Compensation, that party may 

request a formal hearing before an administrative law judge. The administrative law 

judge’s decision may be appealed to the Benefits Review Board, and the Benefits 

Review Board’s decision may be appealed to the U.S. Court of Appeals and finally 

to the U.S Supreme Court. 

Compliance Assistance Available 

To obtain additional information, contact the nearest Black Lung district office 

(www.dol.gov/esa/contacts/owcp/blcontac.htm). 

Questions about insurance and self-insurance requirements should be addressed to 

U.S. Department of Labor, ESA/OWCP/DCMWC, Branch of Standards, Regulations and 

Procedures, Responsible Operator Section, Room C-3526, 200 Constitution Avenue 

NW, Washington, D.C. 20210. 

For additional compliance assistance, visit the DCMWC’s Black Lung Home Page at 

www.dol.gov/esa/regs/compliance/owcp/bltable.htm, or contact the DCMWC by 

phone at 202–693–0047 or by fax at 202–693–1398. 

41 
Penalties/Sanctions 

The Department of Labor may suspend or revoke the authority to self-insure due to 

an operator’s failure to comply with the Act and its regulations, the insolvency of its 

surety on an indemnity bond, or impairment of the operator’s financial responsibility. 

Revocation of the authority to self-insure or the failure to obtain insurance does 

not relieve operators of liability for payment of benefits and provision of medical 

treatment. Operators who fail to secure insurance may be subject to a civil money 

penalty of $1,000 for each day insurance is not in effect. 

A lien may be placed against the property of operators who fail to pay benefits 

for which they have been determined liable or to reimburse the Trust Fund. The 

Department of Labor may also seek an injunction in U.S. District Court to ensure that 

such obligations are met and to prevent future noncompliance. Operators are also 

subject to payment of interest on the benefit payments or Trust Fund reimbursements 

owed, and they may be assessed an additional 20 percent of the amount due, 

which is payable to the claimant. 

Operators who knowingly conceal or dispose of any property to avoid the payment 

of benefits under the Act may be guilty of a misdemeanor and, if convicted, subject 

to a fine of $1,000, imprisonment for up to one year, or both. 

Relation to State, Local, and Other Federal Laws 

Federal black lung benefits are offset by state workers’ compensation benefits for the 

same disease. If state black lung benefits are less than federal black lung benefits, 

then the federal black lung program covers the difference. Social Security disability 

benefits are also reduced by the amount of black lung benefits received. 

42 
Longshore and Harbor Workers’ 

Compensation 

Longshore and Harbor Workers’ Compensation 

Act (LHWCA) (33 USC § 901 et seq.; 

20 CFR Parts 701-704) 

Who is Covered 

The Longshore and Harbor Workers’ Compensation Act (LHWCA) provides for 

compensation and medical care to employees disabled from injuries that occur 

on the navigable waters of the United States, or in adjoining areas used in loading, 

unloading, repairing, or building a vessel. The Act also offers benefits to dependents 

if the injury causes the employee’s death. The term “injury” includes occupational 

disease arising out of employment. 

The Act covers workers employed in maritime occupations, including longshore 

workers or other persons in longshore operations, and any harbor workers, 

including ship repairers, shipbuilders, and shipbreakers. The Act excludes the 

following individuals if they are covered by a state workers’ compensation law: 

office employees, certain retail and service employees, small vessel workers and 

individuals engaged in repairing certain recreational vessels, and masters or 

members of a crew of any vessel. 

Employers of covered employees are responsible for insuring the payment of 

compensation and medical benefits to injured employees. Private insurance carriers 

or employers who are authorized by the Department of Labor (DOL) to become 

self-insured provide this insurance. While a Special Fund administered by the 

Department of Labor may pay benefits in certain circumstances, authorized 

insurance carriers and self-insured employers fund most benefits under the 

LHWCA. ESA’s Office of Workers’ Compensation Programs (OWCP) administers 

the Act. 

In addition to longshore and other maritime workers, the LHWCA covers a variety 

of other employees through several extensions to the Act. The District of Columbia 

Workmen’s Compensation Act (enacted in 1928 and repealed effective July 26, 1982) 

provides benefits for employees in private employment in the District of Columbia 

who sustained injuries or illnesses as a result of employment prior to July 26, 1982. 

(Workers injured after this date are provided for under a workers’ compensation act 

administered by the District of Columbia Government.) 

Also, the Defense Base Act (1941) covers employees of U.S. contractors outside 

the continental United States, Alaska and Hawaii, while the Nonappropriated Fund 

Instrumentalities Act (1952) provides for benefits for civilian employees of post 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

43 
exchanges, service clubs, etc. of the Armed Forces. The Outer Continental Shelf 

Lands Act (1953) provides coverage to employees of private industry conducting 

certain operations on the Outer Continental Shelf of the United States. 

Basic Provisions/Requirements 

An injured employee is eligible to receive compensation for disability at the rate of 

66 2/3 percent of the employee’s average weekly wage, subject to the specified 

maximum in effect at the time of injury, for as long as the effects of the injury 

continue. Compensation is also available for permanent impairment of specified 

limbs and organs and to replace loss of earning capacity. 

Benefits are paid to a widow or widower, or other eligible survivors, at the rate of 

50 percent of the national average weekly wage as determined by Secretary of 

Labor, applicable at the time of injury, or the employee’s full wage, if less. 

The maximum compensation rate is 200 percent of the current national average 

weekly wage as determined by Secretary of Labor, applicable at the time of injury, 

or the employee’s full average weekly wage, whichever is less. Current benefit levels 

are found at www.dol.gov/esa/owcp/dlhwc/nawwinfo.htm. 

Within 10 days from the date of an employee’s injury or death, or 10 days from the 

date an employer has knowledge of an employee’s injury or death, including any 

disease or death proximately caused by the employment, the employer must furnish 

a report to the district director for the compensation district in which the injury or 

death occurred, and thereafter furnish additional or supplemental reports as the 

district director may request. 

No report is to be filed unless the injury causes the employee to lose one or more 

shifts from work. However, the employer must keep records containing the following 

information: (1) the name, address, and occupation of the employer; (2) the name, 

address, and occupation of the employee; (3) the cause, nature, and other relevant 

circumstances of the injury or death; (4) the year, month, day, and hour when, and 

the particular locality where, the injury or death occurred; and (5) such other 

information as OWCP may require. 

Every employer shall maintain adequate records of injuries sustained by employees, 

including information on the disease, other impairments or disabilities, or death 

relating to the injury. Employers must make such records available for inspection by 

OWCP or by any state authority, and they should retain records for three years after the 

date of injury. 

Employers must secure insurance for workers’ compensation coverage under the Act, 

either through an authorized insurance carrier or by obtaining approval to self-insure 

from OWCP. To self-insure, the employer must furnish OWCP with proof of his or her 

ability to pay compensation directly and deposit security in the form of an indemnity 

bond or negotiable securities. 

Once insurance has been obtained, the employer may request a certificate from the 

district director in the compensation district where he or she has operations, showing 

that payment of compensation has been secured. Only one certificate will be issued 

to an employer in a compensation district, and it will be valid only during the period 

for which the employer has secured such payment. 

When an employer obtains insurance through a private insurance carrier, the 

employer’s obligation to pay monetary benefits and provide medical benefits is 

binding on the insurance carrier. 

44 
The employer or insurance carrier must pay compensation payments periodically, 

promptly, and directly to the person entitled to benefits under the Act. 

An employer may apply to OWCP for an exemption to coverage by certifying a 

particular facility as one engaging in building, repairing, or dismantling of small vessels 

exclusively and not receiving a federal maritime subsidy. (Small vessels are defined 

as commercial barges that are under 900 lightship displacement tons (long) or a 

commercial tugboat, towboat, crewboat, supply boat, fishing vessel, or other work 

vessel that is under 1,600 tons gross.) 

Once a facility is certified, injuries sustained there would not be covered under the 

Act except for injuries which occur over the navigable waters of the United States, 

including any adjoining pier, wharf, dock, or facility over the land for launching 

vessels. A facility otherwise covered under the Act remains covered until certification 

of exemption is issued. This exemption from coverage is not intended for use by 

employers whose facilities are used exclusively to work on small vessels. 

The Special Fund was established so that, under certain circumstances, the 

employer’s liability is limited if an employee has a pre-existing permanent partial 

disability. In these cases, benefits are paid from the Special Fund after 104 weeks. 

For OWCP to make this determination, the employer must request limitation of its 

liability and file a fully documented application with OWCP as soon as the claimant’s 

condition becomes known or is an issue in dispute. 

An employer may not discharge or in any manner discriminate against an employee 

because he or she has claimed or attempted to claim compensation, or has 

participated in a proceeding under this Act. This prohibition does not prevent 

discharge of or refusal to employ a person who has been found to have filed a 

fraudulent claim for compensation or who has otherwise made a false statement 

or misrepresentation. 

Employee Rights 

If an employee or his or her survivor(s), or an employer or insurance carrier, 

disagrees with a recommendation of OWCP, a formal hearing may be requested 

before an administrative law judge. The administrative law judge’s decision may in 

turn be appealed to the Benefits Review Board. Appeal from the Benefits Review 

Board’s decision may be taken to the U.S. Court of Appeals and finally to the U.S. 

Supreme Court. 

Compliance Assistance Available 

To obtain additional information, contact the nearest Division of Longshore and 

Harbor Workers’ Compensation office (www.dol.gov/esa/owcp/dlhwc/lscontac.htm). 

Further compliance assistance can be obtained from OWCP’s DLHWC (Longshore) 

Web site (www.dol.gov/esa/owcp/dlhwc/lstable.htm) or by contacting DOL’s 

Toll-Free Help Line at 1–866–4–USA–DOL. 

Penalties/Sanctions 

If any installment of compensation payable without an award is not paid within 

14 days after it becomes due, an additional 10 percent will be added to the unpaid 

installment. OWCP can waive the additional 10 percent payment if the employer 

contacts OWCP and explains why the installment payment was late. The employer 

must also contact OWCP whenever it begins or suspends payments. 

45 
OWCP may suspend or revoke the authorization of any self-insurer. Failure by a 

self-insurer to comply with any provision or requirement of law or regulations, failure 

or insolvency of the surety on his or her indemnity bond, or impairment of financial 

responsibility are deemed good causes for suspension or revocation. 

Any employer who fails to secure coverage by authorized insurance carriers or 

by becoming an authorized self-insurer is subject, upon conviction, to a fine of 

not more than $10,000, or by imprisonment for not more than one year, or both. 

Any employer who discriminates against an employee may be subject to a penalty 

of not less than $1,000 or more than $5,000, and may be required to restore 

that employee to his or her employment along with all wages lost due to the 

discrimination unless that employee is no longer qualified to perform the duties 

of the employment. 

Relation to State, Local, and Other Federal Laws 

Compensation benefits received under other state or federal compensation laws 

for the same injury are offset against benefits paid under the Act. 

46 
Family and Medical Leave

Family and Medical Leave Act of 1993 (FMLA) 

(29 USC §2601 et seq.; 29 CFR Part 825) 

Who is Covered 

The Family and Medical Leave Act (FMLA) provides a means for employees to 

balance their work and family responsibilities by taking unpaid leave for certain 

reasons. The Act is intended to promote the stability and economic security of 

families as well as the nation’s interest in preserving the integrity of families. 

The FMLA applies to any employer in the private sector who engages in commerce, 

or in any industry or activity affecting commerce, and who has 50 or more employees 

each working day during at least 20 calendar weeks in the current or preceding 

calendar year. 

The law covers all public agencies (state and local governments) and local education 

agencies (schools, whether public or private). These employers do not need to 

meet the “50 employee” test. Title II of FMLA covers most federal employees, who 

are subject to regulations issued by the Office of Personnel Management. 

To be eligible for FMLA leave, an individual must (1) be employed by a covered 

employer and work at a worksite within 75 miles of which that employer employs 

at least 50 people; (2) have worked at least 12 months (which do not have to be 

consecutive) for the employer; and (3) have worked at least 1,250 hours during the 

12 months immediately before the date FMLA leave begins. 

Basic Provisions/Requirements 

The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave 

during any 12-month period for the following reasons: 

■ Birth and care of the employee’s child, or placement for adoption or foster care 

of a child with the employee; 

■ Care of an immediate family member (spouse, child, parent) who has a serious 

health condition; or 

■ Care of the employee’s own serious health condition. 

If an employee was receiving group health benefits when leave began, an employer 

must maintain them at the same level and in the same manner during periods of 

FMLA leave as if the employee had continued to work. Usually, an employee may 

elect (or the employer may require) the use of any accrued paid leave (vacation, 

sick, personal, etc.) for periods of unpaid FMLA leave. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

47 
Employees may take FMLA leave in blocks of time less than the full 12 weeks 

on an intermittent or reduced leave basis when medically necessary. Taking 

intermittent leave for the placement, adoption, or foster care of a child is subject 

to the employer’s approval. Intermittent leave taken for the birth and care of a child 

is also subject to the employer’s approval except for pregnancy-related leave that 

would be leave for a serious health condition. 

When the need for leave is foreseeable, an employee must give the employer at 

least 30 days notice, or as much notice as is practicable. When the leave is not 

foreseeable, the employee must provide such notice as soon as possible. 

An employer may require medical certification of a serious health condition from 

the employee’s health care provider. An employer may also require periodic reports 

during the period of leave of the employee’s status and intent to return to work, 

as well as “fitness-for-duty” certification upon return to work in appropriate situations. 

An employee who returns from FMLA leave is entitled to be restored to the same or 

an equivalent job (defined as one with equivalent pay, benefits, responsibilities, etc.). 

The employee is not entitled to accrue benefits during periods of unpaid FMLA leave, 

but the employer must return him or her to employment with the same benefits at 

the same levels as existed when leave began. 

Employers are required to post a notice for employees outlining the basic provisions 

of FMLA and are subject to a $100 civil money penalty per offense for willfully 

failing to post such notice. Employers are prohibited from discriminating against or 

interfering with employees who take FMLA leave. 

Employee Rights 

The FMLA provides that eligible employees of covered employers have a right to take 

up to 12 weeks of job-protected leave in any 12-month period for qualifying events 

without interference or restraint from their employers. The FMLA also gives employees 

the right to file a complaint with the Wage and Hour Division, file a private lawsuit 

under the Act (or cause a complaint or lawsuit to be filed), and testify or cooperate 

in other ways with an investigation or lawsuit without being fired or discriminated 

against in any other manner. 

Compliance Assistance Available 

The Wage and Hour Division of the Employment Standards Administration 

administers FMLA. More detailed information, including copies of explanatory 

brochures, may be obtained by contacting the Wage and Hour Division’s local 

offices (www.dol.gov/esa/contacts/whd/america2.htm). In addition, the Wage 

and Hour Division has developed the elaws Family and Medical Leave Act Advisor 

(www.dol.gov/elaws/fmla.htm), which is an online resource that answers a variety 

of commonly asked questions about FMLA, including employee eligibility, valid 

reasons for leave, notification responsibilities of employers and employees, and 

rights and benefits of employees. Compliance assistance information is also available 

from the Wage and Hour Division’s Web site (www.wagehour.dol.gov). For additional 

assistance, contact the Wage and Hour Division help line at 1–866–4USWAGE. 

48 
Penalties/Sanctions 

Employees and other persons may file complaints with the Employment Standards 

Administration (usually through the nearest office of the Wage and Hour Division). 

The Department of Labor may file suit to ensure compliance and recover damages 

if a complaint cannot be resolved administratively. Employees also have private rights 

of action, without involvement of the Department of Labor, to correct violations and 

recover damages through the courts. 

Relation to State, Local, and Other Federal Laws 

A number of states have family leave statutes. Nothing in the FMLA supersedes a 

provision of state law that is more beneficial to the employee, and employers must 

comply with the more beneficial provision. Under some circumstances, an employee 

with a disability may have rights under the Americans with Disabilities Act. 

49 
Lie Detector Tests

Employee Polygraph Protection Act of 1988 

(EPPA) (29 USC §2001 et seq.; 29 CFR Part 801) 

Who is Covered 

The Employee Polygraph Protection Act (EPPA) applies to most private employers. 

The law does not cover federal, state, and local governments. 

Basic Provisions/Requirements 

The EPPA prohibits most private employers from using lie detector tests, either for 

preemployment screening or during the course of employment. 

Employers generally may not require or request any employee or job applicant to take 

a lie detector test, or discharge, discipline, or discriminate against an employee or 

job applicant for refusing to take a test or for exercising other rights under the Act. 

Employers may not use or inquire about the results of a lie detector test or discharge 

or discriminate against an employee or job applicant on the basis of the results of a 

test, or for filing a complaint, or for participating in a proceeding under the Act. 

Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be 

administered to certain job applicants of security service firms (armored car, alarm, 

and guard) and of pharmaceutical manufacturers, distributors, and dispensers. 

Subject to restrictions, the Act also permits polygraph testing of certain employees of 

private firms who are reasonably suspected of involvement in a workplace incident 

(theft, embezzlement, etc.) that resulted in specific economic loss or injury to the 

employer. 

Where polygraph examinations are allowed, they are subject to strict standards 

for the conduct of the test, including the pretest, testing, and post-testing phases. 

An examiner must be licensed and bonded or have professional liability coverage. 

The Act strictly limits the disclosure of information obtained during a polygraph test. 

Employee Rights 

The EPPA provides that employees have a right to employment opportunities without 

being subjected to lie detector tests, unless a specific exemption applies. The Act 

also provides employees the right to file a lawsuit for violations of the Act. In addition, 

the Wage and Hour Division accepts complaints of alleged EPPA violations. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

50 
Compliance Assistance Available 

The Wage and Hour Division of the Employment Standards Administration administers 

and enforces the Act. More detailed information, including copies of explanatory 

brochures and regulatory and interpretative materials, may be obtained from the Wage 

and Hour Division’s local offices (www.dol.gov/esa/contacts/whd/america2.htm). 

Additional compliance assistance information may be found on the Wage and Hour 

Division’s Web site (www.wagehour.dol.gov) or by contacting the Wage and Hour 

Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

The Secretary of Labor can bring court action to restrain violators and assess civil 

money penalties up to $10,000 per violation. An employer who violates the law 

may be liable to the employee or prospective employee for legal and equitable 

relief, including employment, reinstatement, promotion, and payment of lost wages 

and benefits. 

Any person against whom a civil money penalty is assessed may, within 30 days 

of the notice of assessment, request a hearing before an Administrative Law Judge. 

If dissatisfied with the Administrative Law Judge’s decision, such person may request 

a review of the decision by the Secretary of Labor. Final determinations on violations 

are enforceable through the courts. 

Relation to State, Local, and Other Federal Laws 

The law does not preempt any provision of any state or local law or any collective 

bargaining agreement that is more restrictive with respect to lie detector tests. 

51 
Whistleblower Protection Provisions 

Enforced By OSHA 

The Occupational Safety and Health Administration (OSHA) administers the 

employee protection (or “whistleblower”) provisions of fourteen statutes. 

Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)

Surface Transportation Assistance Act (STAA), 49 USC § 31105 

Asbestos Hazard Emergency Response Act (AHERA), 

15 USC § 2651 

International Safety Container Act (ISCA), 46 USC App. § 1506

Energy Reorganization Act of 1974 (ERA), 42 USC § 5851 

Clean Air Act (CAA), 42 USC § 7622 

Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i) 

Federal Water Pollution Control Act (FWPCA), 33 USC § 1367 

Toxic Substances Control Act (TSCA), 15 USC § 2622 

Solid Waste Disposal Act (SWDA), 42 USC § 6971 

Comprehensive Environmental Response, Compensation and 

Liability Act (CERCLA), 42 USC § 9610 

Wendell H. Ford Aviation Investment and Reform Act (AIR21), 

49 USC § 42121 

Sarbanes–Oxley Act (SOA), 18 USC § 1514A 

Pipeline Safety Improvement Act (PSIA), 49 USC § 60129 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

52 
Who is Covered 

Under the OSH Act, employees who believe that their employer has discriminated 

or retaliated against them for raising or reporting safety or health concerns may file 

a complaint with OSHA. Under the Surface Transportation Assistance Act (STAA), 

employees in the trucking industry may file complaints with OSHA if they believe 

that their employer has discriminated against them for reporting safety concerns or 

for refusing to drive under dangerous circumstances or in violation of safety rules. 

Similarly, under the other statutes, employees also may file complaints with OSHA 

if they believe that their employer has discriminated against them for reporting 

protected safety concerns involving the airline or pipeline industries, for reporting 

protected environmental concerns including asbestos in schools, or for reporting 

potential securities fraud. 

The Department of Labor also enforces the anti-retaliation provisions of several other 

statutes that are not administered by OSHA. Information concerning many of these 

additional anti-retaliation statutes is available in other sections of the Guide describing 

the statutes enforced by different Department agencies, such as the Wage and Hour 

Division (www.wagehour.dol.gov), the Employee Benefits Security Administration 

(www.dol.gov/ebsa), and the Mine Safety and Health Administration (www.msha.gov). 

Basic Provisions/Requirements 

Generally, the employee protection provisions listed above prohibit an “employer” 

or any “person” (the definition of which may vary from statute to statute) from 

discharging or otherwise discriminating against any employee with respect to the 

employee’s compensation, terms, conditions, or privileges of employment because 

the employee engaged in specified “protected” activities. 

The protected activities typically include: (1) initiating a proceeding under, or for 

the enforcement of, any of these statutes, or causing such a proceeding to be 

initiated; (2) testifying in any such proceeding; (3) assisting or participating in any 

such proceeding or in any other action to carry out the purposes of these statutes; 

or (4) complaining about a violation. 

The Energy Reorganization Act of 1974 (ERA), the Wendell H. Ford Aviation 

Investment and Reform Act (AIR21), the Sarbanes–Oxley Act (SOA), and the Pipeline 

Safety Improvement Act (PSIA) specifically cover an employee’s internal complaints 

to his or her employer, and it is the Secretary’s position, as set forth in regulations, 

that employees who express safety or quality assurance concerns internally to their 

employers are protected under the other whistleblower statutes. With the exception 

of the Fifth Circuit, the courts of appeals that have considered whether internal 

complaints are protected have agreed with the Secretary. 

Employee Rights 

An employee who believes that he or she has been discriminated against in violation 

of any of the statutes listed above may file a complaint with OSHA. Complaints 

must be filed within 30 days after the occurrence of the alleged violation under the 

OSH Act, the Clean Air Act (CAA), the Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA), the Solid Waste Disposal Act (SWDA), the 

Federal Water Pollution Control Act (FWPCA), the Safe Drinking Water Act (SDWA), 

and the Toxic Substances Control Act (TSCA); within 60 days under the International 

Safety Container Act (ISCA); within 90 days under the AIR21, the SOA, and the 

53 
Asbestos Hazard Emergency Response Act (AHERA); and within 180 days under the 

STAA, the ERA, and the PSIA. Under the SOA, if the Secretary has not issued a final 

decision within 180 days of the filing of the complaint, and there is no showing that 

there has been delay due to the bad faith of the employee, the employee may bring 

an action at law or equity in district court. 

Compliance Assistance Available 

More detailed information, including copies of regulatory and interpretative materials, 

may be obtained from the nearest OSHA office (www.osha.gov/html/RAmap.html). 

Additional compliance assistance information is available from the OSHA Web site 

at www.osha.gov or by contacting OSHA’s help line at 1–800 –321– OSHA 

(1– 800 –321– 6742). 

Investigations/Penalties/Sanctions 

Upon receipt of a timely complaint, OSHA notifies the employer and, if conciliation 

fails, conducts an investigation. Where OSHA finds that complaints filed under the 

OSH Act, the AHERA, and the ISCA have merit, they are referred to the Solicitor’s 

Office for legal action. Complaints under these three statutes found not to have 

merit will be dismissed. 

Where OSHA finds a violation after investigating complaints under the other statutes 

listed above, it will issue a determination letter requiring the employer to pay back 

wages, reinstate the employee, reimburse the employee for attorney’s and expert 

witness fees, and take other steps to provide necessary relief. Complaints found 

not to have merit will be dismissed. 

Parties who object to OSHA’s determinations under the statutes listed above 

(except for the OSH Act, the AHERA, and the ISCA) may request a hearing before 

the Department of Labor’s Office of Administrative Law Judges (OALJ). Judges’ 

decisions are reviewed by the Department of Labor’s Administrative Review Board, 

which the Secretary has designated to issue final agency decisions. 

Under the STAA, if OSHA finds in favor of the employee, litigation usually is 

conducted by the Solicitor’s Office, but sometimes by the employee. Under the 

other statutes, litigation generally is conducted by the private parties themselves. 

Employers and employees may seek judicial review of an adverse ARB decision. 

Under the AIR21, the SOA, and the PSIA, employees who file complaints frivolously 

or in bad faith may be liable for attorney’s fees up to $1,000. 

Relation to State, Local, and Other Federal Laws 

The Supreme Court has held that the employee protection provisions of the ERA 

do not preempt existing state statutes and common law claims. The other statutes 

listed above should be consulted separately to determine whether or not their 

employee protection provisions are supplementary to protection provided by 

state laws. 

54 
Plant Closings and Mass Layoffs

Worker Adjustment and Retraining Notification 

Act (WARN) (29 USC §2101 et seq.; 20 CFR 

Part 639) 

Who is Covered 

The Worker Adjustment and Retraining Notification Act (WARN) generally covers 

employers with 100 or more employees, not counting those who have worked less 

than six months in the last 12 months and those who work an average of less than 

20 hours a week. Regular federal, state, and local government entities that provide 

public services are not covered. Employees entitled to notice under WARN include 

managers and supervisors as well as hourly and salaried workers. 

Basic Provisions/Requirements 

WARN protects workers, their families, and communities by requiring employers to 

provide notification 60 calendar days in advance of plant closings and mass layoffs. 

Advance notice gives workers and their families some transition time to adjust to the 

prospective loss of employment, to seek and obtain other jobs and, if necessary, to 

enter skill training or retraining that will allow these workers to compete successfully 

in the job market. WARN also provides for notice to state dislocated worker units so 

that they can promptly offer dislocated worker assistance. 

A covered plant closing occurs when a facility or operating unit is shut down for 

more than six months, or when 50 or more employees lose their jobs during any 

30-day period at a single site of employment. A covered mass layoff occurs when a 

layoff of six months or longer affects either 500 or more workers or at least 33 percent 

of the employer’s workforce when the layoff affects between 50 and 499 workers. 

The number of affected workers is the total number laid off during a 30-day (or in 

some cases 90-day) period. 

WARN does not apply to closure of temporary facilities, or the completion of an 

activity when the workers were hired only for the duration of that activity. WARN also 

provides for less than 60 days notice when the layoffs resulted from closure of a 

faltering company, unforeseeable business circumstances, or a natural disaster. 

Employee Rights 

Workers or their representatives, and units of local government may bring individual 

or class action suits. U.S. district courts enforce WARN requirements. The Court may 

allow reasonable attorney’s fees as part of any final judgment. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

55 
Compliance Assistance Available 

For general information about WARN, a fact sheet (www.doleta.gov/programs/factsht/ 

warn.htm) and employer’s guide (www.doleta.gov/layoff/pdf/EmployerWARN09_ 

2003.pdf) are available from the Employment and Training Administration’s Web site 

(www.doleta.gov). 

Specific requirements of WARN may be found in the Act itself, Public Law 100-379 

(29 USC 2101 et seq.). The Department published final regulations on April 20, 1989 

in the Federal Register, pages 16042 to 16070 (Vol. 54, No. 75). The regulations 

appear at 20 CFR Part 639 (www.dol.gov/dol/allcfr/ETA/Title_20/Part_639/toc.htm). 

A copy of the Act and regulations may be obtained from the U.S. Department of 

Labor, Employment and Training Administration (ETA), Office of Adult Services, 

Division of Adults and Dislocated Workers, Room C-5325, 200 Constitution Avenue NW, 

Washington, D.C. 20210. The telephone number is 202–693–3580. 

For additional assistance, contact the ETA help line at 1–877–US–2JOBS. 

Penalties/Sanctions 

An employer who violates the WARN provisions is liable to each employee for an 

amount equal to back pay and benefits for the period of the violation, up to 60 days. 

This may be reduced by the period of any notice that was given and any voluntary 

payments that the employer made to the employee. 

An employer who fails to provide the required notice to the unit of local government 

is subject to a civil penalty not to exceed $500 for each day of violation. The employer 

may avoid this penalty by satisfying the liability to each employee within three weeks 

after the closing or layoff. 

Relation to State, Local, and Other Federal Laws 

WARN does not preempt any other federal, state, or local law, or any employer/ 

employee agreement that requires other notification or benefit. Rather, the rights 

provided by WARN supplement those provided by other federal, state, or local laws. 

56 
Union Members

The Labor-Management Reporting and 

Disclosure Act of 1959 (LMRDA), as amended 

(29 USC §401 et seq.; 29 CFR Parts 401-453) 

Who is Covered 

The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), as amended, 

directly affects millions of people throughout the United States. The LMRDA covers 

unions, officers and employees of unions, union members, employees who work 

under collective bargaining agreements (even if they are not union members), 

employers, labor relations consultants, surety companies, trusts in which a union 

is interested, and other “persons” as defined in the LMRDA who may be covered 

by particular provisions of the Act. 

LMRDA also covers unions representing U.S. Postal Service employees by virtue 

of the Postal Reorganization Act of 1970. Section 7120 of the Civil Service Reform 

Act, and its implementing regulations, apply many LMRDA standards to unions 

representing employees in most agencies of the executive branch of the federal 

government. LMRDA does not cover unions composed solely of state and local 

government employees. 

Basic Provisions/Requirements 

The LMRDA consists of seven titles: 

■ Title I, the “Bill of Rights,” sets forth certain basic rights that Congress believed 

federal law should guarantee to union members. Members may enforce these 

rights through private suit in federal district court. Section 104 of the LMRDA, 

which establishes the right to receive or examine collective bargaining agreements, 

applies not only to union members but also to all nonunion employees whose 

rights are directly affected by a collective bargaining agreement. 

The Secretary of Labor also has enforcement responsibilities with regard to 

Section 104. The Office of Labor-Management Standards (OLMS) of the 

Employment Standards Administration handles these responsibilities. 

■ Title II requires unions to file an information report (Form LM-1), copies of their 

constitution and bylaws, and annual financial reports (Form LM-2, LM-3, or LM-4) 

with OLMS. The reports and documents filed with OLMS are public information, 

and any person may examine them or obtain copies at OLMS offices. 

Officers and employees of unions must file a Form LM-30 with OLMS if they 

have any loans or benefits from, or certain financial interests in, employers whose 

employees their union represents and businesses that deal with their union. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

57 
Labor relations consultants who enter into an agreement with an employer to 

persuade employees about their union activities, or to supply certain information 

to the employer, must file a Form LM-20, Agreement and Activities Report, and a 

Form LM-21, Receipts and Disbursements Report. 

Employers who enter into such an agreement or engage in certain specified 

financial dealings with their employees, unions, union officers, or labor relations 

consultants must file a Form LM-10. 

Finally, surety companies that issue bonds required by the LMRDA or the Employee 

Retirement Income Security Act of 1974 (ERISA) must file a Form S-1 to report 

data such as premiums received, total claims paid, and amounts recovered. 

The Secretary of Labor has authority to enforce the reporting requirements of 

the Act. 

■ Title III concerns the imposition of trusteeships over subordinate unions. A parent 

union may impose a trusteeship only for a purpose specified in the LMRDA, 

and it must establish and administer the trusteeship in accordance with its own 

constitution and bylaws. A parent union that places a subordinate union in 

trusteeship must file initial, semiannual, and terminal trusteeship reports 

(Forms LM-15, LM-15A, and LM-16). 

Under the LMRDA, the parent union may not engage in certain specified 

acts involving the funds and delegate votes from a union under trusteeship. 

The Secretary of Labor has the authority to investigate and enforce alleged 

violations of Title III, and a union member or subordinate union may also enforce 

the provisions of this title, except for the reporting requirements, through private 

suit in federal district court. 

■ Title IV establishes standards for elections of union officers. Local unions 

must elect their officers by secret ballot; national and international unions and 

intermediate bodies must elect their officers either by secret ballot of the members 

or by delegates chosen by secret ballot. Title IV requires elections to be held by 

national and international unions at least every five years, intermediate bodies at 

least every four years, and local unions at least every three years. 

Unions and employers may not use their funds to promote the candidacy of any 

candidate, although union funds may be used to conduct an election. A union 

member in good standing has the right to nominate candidates, be a candidate 

subject to reasonable qualifications uniformly imposed, hold office, and support 

and vote for the candidates of the member’s choice. Unions must mail a notice 

of election to every member at the member’s last-known home address at least 

15 days before the election. 

A union member who has exhausted internal election remedies, or invoked such 

remedies without obtaining a final decision within three calendar months, may file 

a complaint with the Secretary within one calendar month thereafter, alleging a 

violation of Title IV of the LMRDA. The Secretary of Labor has authority to file suit in 

a federal district court to set aside an invalid union election and to request a new 

election under the supervision of the Secretary. 

■ Title V provides a number of safeguards for unions. Union officers have a duty 

to manage the funds and property of the union solely for the benefit of the 

union in accordance with its constitution and bylaws. A union may not have 

outstanding loans to any one officer or employee that exceed $2,000. Union 

58 
officials who handle union funds or property must be bonded to provide 

protection against losses. 

A union officer or employee who embezzles or otherwise misappropriates union 

funds or other assets commits a federal crime punishable by a fine and/or 

imprisonment. Persons convicted of certain crimes, including a violation of Title II 

or III of the LMRDA, may not hold union office or employment for up to 13 years 

after conviction or the end of imprisonment. 

■ Title VI includes the authority to investigate (see “Penalties/Sanctions” below); 

a prohibition on a union fining, suspending, expelling, or otherwise disciplining 

members for exercising their rights under the LMRDA; and a prohibition on the 

use or threat of force or violence to interfere with a union member in the exercise 

of LMRDA rights. 

■ Title VII amends the Labor Management Relations Act (LMRA), otherwise known 

as the Taft–Hartley Act, concerning strikes, boycotts, and picketing. The National 

Labor Relations Board (NLRB) (www.nlrb.gov), an independent federal agency, 

administers the LMRA. 

Employee Rights 

Title I of the LMRDA guarantees certain rights to all union members These include 

the right to nominate candidates, to vote in elections or referendums, to attend 

membership meetings and to participate in the deliberations and vote upon the 

business of such meetings, subject to reasonable rules and regulations in the 

organization’s constitution and bylaws. 

They also include the right to meet and assemble freely with other members, to 

express any views, arguments, or opinions, and to express views at meetings about 

candidates in an election of the labor organization or about any business properly 

before the meeting, subject to the organization’s established and reasonable rules 

pertaining to the conduct of meetings. Additional rights outlined in Title I address 

dues, initiation fees and assessments, protection of the right to sue, and safeguards 

against improper disciplinary action. 

Compliance Assistance Available 

Additional compliance assistance materials appear on the OLMS Home Page 

(www.dol.gov/esa/olms_org.htm). OLMS field office staff members are available 

to answer questions about the LMRDA and to help individuals and organizations 

affected by the law. 

The OLMS National Office Public Disclosure Room has copies of all reports and 

documents filed with OLMS, and OLMS field offices have copies of reports filed by 

organizations and individuals located within their jurisdictions. Copies of Form LM-1, 

LM-2, LM-3, and LM-4 reports filed by unions may be ordered on the OLMS Web site 

at www.dol-esa.gov/order/. 

In addition, all OLMS field offices (www.dol.gov/esa/contacts/olms/lmskeyp.htm# 

field_offices) as well as the OLMS National office (www.dol.gov/esa/contacts/olms/ 

lmskeyp.htm) have blank reporting forms and instructions as well as explanatory 

pamphlets about the law. For additional compliance assistance, contact the 

Department’s Toll-Free Help Line at 1–866–4–USA–DOL. 

59 
Penalties/Sanctions 

The LMRDA authorizes the Secretary of Labor to investigate “in order to determine 

whether any person has violated or is about to violate” any provisions of the Act 

(except the Bill of Rights of Union Members and amendments made by the LMRDA 

to other laws), and to “enter such places and inspect such records and accounts 

and question such persons” as may be necessary to determine whether a violation 

has occurred. The Secretary may issue subpoenas to compel testimony or to obtain 

records and other materials needed to complete an investigation. 

The Secretary may file civil actions in federal district court to restrain or correct 

violations and to bring about compliance with the LMRDA. The embezzlement 

of union funds is subject to a fine of up to $250,000 and/or imprisonment up to 

five years. Criminal penalties also apply to other Title V provisions as well as to 

certain reporting violations under Titles II and III. 

Relation to State, Local, and Other Federal Laws 

Federal laws related to the LMRDA include the National Labor Relations Act of 1935; 

the Taft–Hartley Act of 1947; the Racketeer-Influenced and Corrupt Organizations 

(RICO) Act; the Service Contract Act; and the Civil Service Reform Act of 1978. 

60 
Uniformed Service Members

Uniformed Services Employment and 

Reemployment Rights Act (USERRA) 

(38 USC §§4301 through 4333) 

Who is Covered 

The Uniformed Services Employment and Reemployment Rights Act (USERRA) 

was signed on October 13, 1994. The Act applies to persons who perform duty, 

voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, 

Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, 

as well as the reserve components of each of these services. Federal training or 

service in the Army National Guard and Air National Guard also gives rise to rights 

under USERRA. In addition, under the Public Health Security and Bioterrorism 

Response Act of 2002, certain disaster response work (and authorized training for 

such work) is considered “service in the uniformed services.” 

Uniformed service includes active duty, active duty for training, inactive duty training 

(such as drills), initial active duty training, and funeral honors duty performed by 

National Guard and reserve members, as well as the period for which a person is 

absent from a position of employment for the purpose of an examination to 

determine fitness to perform any such duty. 

USERRA covers nearly all employees, including part-time and probationary 

employees. USERRA applies to virtually all U.S. employers, regardless of size. 

Basic Provisions/Requirements 

The pre-service employer must reemploy service members returning from a period 

of service in the uniformed services if those service members meet five criteria: 

■ The person must have held a civilian job; 

■ The person must have given notice to the employer that he or she was leaving 

the job for service in the uniformed services, unless giving notice was precluded 

by military necessity or otherwise impossible or unreasonable; 

■ The cumulative period of service must not have exceeded five years; 

■ The person must not have been released from service under dishonorable or 

other punitive conditions; and 

■ The person must have reported back to the civilian job in a timely manner or have 

submitted a timely application for reemployment. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

61 
USERRA establishes a five-year cumulative total on military service with a single 

employer, with certain exceptions allowed for situations such as call-ups during 

emergencies, reserve drills, and annually scheduled active duty for training. 

Employers are required to provide to persons entitled to the rights and benefits under 

USERRA a notice of the rights, benefits, and obligations of such persons and such 

employers under USERRA. 

USERRA also allows an employee to complete an initial period of active duty that 

exceeds five years (e.g., enlistees in the Navy’s nuclear power program are required 

to serve six years). 

Employee Rights 

Under USERRA, restoration rights are based on the duration of military service rather 

than the type of military duty performed (e.g., active duty for training or inactive duty), 

except for fitness-for-service examinations. The time limits for returning to work are 

as follows: 

■ Less than 31 days service: By the beginning of the first regularly scheduled work 

period after the end of the calendar day of duty, plus time required to return home 

safely and an eight hour rest period. If this is impossible or unreasonable, then as 

soon as possible; 

■ 31 to 180 days: The employee must apply for reemployment no later than 14 days 

after completion of military service. If this is impossible or unreasonable through 

no fault of the employee, then as soon as possible; 

■ 181 days or more: The employee must apply for reemployment no later than 

90 days after completion of military service; 

■ Service-connected injury or illness: Reporting or application deadlines are 

extended for up to two years for persons who are hospitalized or convalescing. 

USERRA guarantees pension plan benefits that accrued during military service, 

regardless of whether the plan is a defined benefit plan or a defined contribution 

plan. USERRA provides that service members activated for duty on or after 

December 10, 2004 may elect to extend their employer-sponsored health coverage 

for up to 24 months. Service members activated prior to 12/10/04 may elect to 

extend coverage for up to 18 months. Employers may require these individuals to 

pay up to 102% of total premiums for that elective coverage. In addition, USERRA 

prohibits employment discrimination against a person on the basis of past military 

service, current military obligations, or an intent to serve. 

Compliance Assistance Available 

The Veterans’ Employment and Training Service (VETS) enforces USERRA. However, 

the law also allows an employee to enforce his or her rights by filing a court action 

directly, without filing a complaint with VETS. 

Compliance assistance information is available on the VETS Web site (www.dol.gov/ 

vets). Specific compliance assistance materials available include: a fact sheet 

(OASVET 97-3) about USERRA, the notice/poster (www.dol.gov/osbp/sbrefa/poster/ 

userra.htm) to employees of their rights, benefits, and obligations under USERRA, and 

a non-technical USERRA Guide (www.dol.gov/vets/programs/userra/Right_Act4_ 

2005.pdf) that contains general information about the law. Copies of VETS’ 

62 
publications, or answers to questions about USERRA, may also be obtained from 

the local VETS office (www.dol.gov/vets/aboutvets/contacts/main.htm). 

Another compliance assistance resource, the elaws Uniformed Services Employment 

and Reemployment Rights Act (USERRA) Advisor (www.dol.gov/elaws/userra.htm) 

helps veterans understand employee eligibility and job entitlements, employer 

obligations, benefits, and remedies under the Act. For additional compliance 

assistance, contact the Department’s Toll-Free Help Line at 1–866–4–USA–DOL. 

Penalties/Sanctions 

A court may order an employer to compensate a prevailing claimant for lost wages 

or benefits. USERRA allows for liquidated damages for “willful” violations. 

Relation to State, Local, and Other Federal Laws 

USERRA does not preempt state laws providing greater or additional rights, but it does 

preempt state laws providing lesser rights or imposing additional eligibility criteria. 

63 
Authorized Workers

Immigration and Nationality Act 

(8 USC 1101 as amended) Section 274A 

Who is Covered 

The Immigration and Nationality Act (INA) includes provisions addressing employment 

eligibility, employment verification, and nondiscrimination. These provisions apply to 

all employers. 

Basic Provisions/Requirements 

Under the INA, employers may hire only persons who may legally work in the 

United States (i.e., citizens and nationals of the U.S. and aliens authorized to work 

in the U.S.). The employer must verify the identity and employment eligibility of 

anyone to be hired, which includes completing the Employment Eligibility Verification 

Form (I-9). Employers must keep each I-9 on file for at least three years, or one year 

after employment ends, whichever is longer. 

Employee Rights 

The INA protects U.S. citizens and aliens authorized to accept employment in the 

U.S. from discrimination in hiring or discharge on the basis of national origin and

citizenship status. 

Compliance Assistance Available 

More detailed information, including copies of explanatory brochures and regulatory 

and interpretative materials, may be obtained from local offices of the Employment 

Standards Administration’s Wage and Hour Division (www.wagehour.dol.gov or 

1– 866–4 USWAGE) and the Office of Federal Contract Compliance Programs 

(www.dol.gov/esa/ofccp or 1– 866–4–USA– DOL). 

Penalties/Sanctions 

Employers who fail to complete and/or retain the I-9 forms are subject to penalties. 

The Department of Homeland Security (DHS) (www.dhs.gov) enforces the INA 

requirements on verification of employment eligibility. The Department of Justice’s 

(DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices 

(www.justice.gov/crt/activity.html#osc) enforces the anti-discrimination provisions. 

As part of their ongoing enforcement efforts, the ESA’s Wage and Hour Division and 

Office of Federal Contract Compliance Programs conduct inspections of the I-9 forms. 

They report their findings to DHS and to DOJ where disparate treatment or 

unauthorized employment is apparent. 

Relation to State, Local, and Other Federal Laws 

Not applicable. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

64 
Temporary Agricultural Workers 

(H-2A Visas) 

Sections 101(a)(15)(H)(ii)(a), 214, and 218 of the 

Immigration and Nationality Act of 1952, (INA) 

as amended (8 USC §§1101, 1184, and 1188; 

20 CFR 655, Subpart B, and 29 CFR, Part 500) 

Who is Covered 

The Immigration and Nationality Act (INA) covers agricultural employers seeking to 

hire temporary agricultural workers under H-2A visas. 

Basic Provisions/Requirements 

Employers may not import a foreign worker under an H-2A visa unless they have 

applied to the Employment and Training Administration (ETA) (www.doleta.gov) for 

certification that: (1) there are not sufficient workers who are able, willing, qualified, 

and available to perform the work; and (2) the employment of foreign workers will 

not adversely affect the wages and working conditions of similarly employed workers 

in the United States. 

To receive a timely determination, an employer must apply for a temporary labor 

certification at least 45 days before the date of need. The employer should file 

the application with both the appropriate ETA office and the office of the State 

Workforce Agency (SWA) serving the geographic areas where the foreign workers 

will be employed. 

ETA’s jurisdiction includes whether the employer conducted positive recruitment, 

whether a strike or lockout was in progress, whether the employer will provide 

workers’ compensation insurance, whether adequate housing is available, what 

the prevailing wage rates are, and other similar matters. The regulations addressing 

issuance and denial of labor certification for temporary, nonimmigrant foreign 

workers are found at 20 CFR 655, Subpart B. 

The procedures for obtaining a labor certification and the contractual obligations of 

employers are summarized below. Additional information may be found on the 

ETA Hiring Guest Workers page at www.doleta.gov/business/gw/. Select the link for 

Seasonal and Agricultural Workers (H-2A). 

Recruitment of U.S. Workers. Any employer who applies for certification of H-2A 

job opportunities must first attempt to recruit U.S. workers to fill these openings. 

Employers must continue to engage in “positive recruitment” of U.S. workers until 

the foreign workers depart for the place of employment. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

65 
In addition, after the H-2A workers have begun work, the employer must agree to 

accept U.S. workers until 50 percent of the certified contract period has passed. 

Rates of Pay. In every H-2A employment situation, the employer must agree to 

pay all workers employed in certified jobs either: (1) the Adverse Effect Wage Rate 

(AEWR); (2) the Prevailing Rate for a given crop/area; or (3) the legal state minimum 

wage, whichever is higher. None of these rates may be less than the federal 

minimum wage, currently $5.15 per hour. 

The U.S. Department of Agriculture (USDA) establishes the AEWR, which is an annual 

weighted average hourly rate for field and livestock workers (combined) for nineteen 

USDA regions. Prevailing wages may be calculated on the basis of hourly or “piece” 

rates of pay. However computed, the rate specified on the job order cannot be 

less than the prevailing wage. 

Job Clearance Order/ Worker Contracts. The employer must provide every worker 

a copy of the worker contract or, as a substitute for the worker contract, a copy of 

the clearance order. If worker contracts are provided, they must specify at least 

those benefits required by the regulations. The job clearance order is the “official” 

document, since it is the one the employer submits and the Department of Labor 

approves. The job clearance order/contract must state: 

■ The beginning and ending dates of the contract period; 

■ Any and all significant conditions of employment, such as payment for 

transportation expenses incurred, housing and meals to be provided (and 

related charges), specific days workers are not required to work (i.e., Sabbath, 

federal holidays); 

■ The hours per day and the days per week each worker will be expected to 

work during the contract period; 

■ The crop(s) to be worked and rate(s) for each crop/job; 

■ The rate(s) of pay for each job to be performed; 

■ Any tools required, with an indication that employer pays for them; and 

■ Verification that workers’ compensation (or comparable benefits) will be 

provided consistent with the law of the state where the work is performed. 

Guarantees to All Workers. Employers certified for H-2A contracts must agree to 

provide each worker an offer of employment for at least 75 percent of the workdays 

in the contract period (with hours as stated in the job offer). Such an offer is called 

the “three-fourths guarantee.” For example, in a contract for a 10-week period, 

during which a normal workweek is specified as six days a week, eight hours per 

day, the worker would have to be guaranteed employment for at least 360 hours 

(i.e., 10 weeks x 48 hours per week = 480 hours x 75% = 360 hours). 

Wages for the guaranteed 75 percent period would be calculated at the rate the 

workers would have been paid under the job order, that is, not less than the average 

hourly rate, the AEWR for the state in which the work was done, or the federal or 

state minimum wage, whichever is higher. 

Transportation Costs/Reimbursement. Every non-local worker employed on a H-2A 

contract is entitled to be paid for all transportation costs related to travel from the 

place where the worker was recruited to the job site, and then back to the worker’s 

66 
area of residence. Both foreign and U.S. workers are entitled to such payments. 

Workers are defined as “non-local” if they cannot reasonably return to their permanent 

residence every night. Generally, employers must reimburse expenses as follows: 

■ For transportation to the place of employment, the employer must repay the 

worker when 50 percent of the contract period has been completed. 

■ For transportation “home”, the worker must complete the agreed-upon contract 

period. The employer has no obligation to pay return expenses if an employee 

abandons the employment unless some special provision in the worker’s contract 

provides otherwise. 

Records Required. Employers certified for H-2A contracts must keep records of the 

hours each worker actually works. In addition, the employer must retain a record of 

time “offered” to the worker but which the worker “refused” to work. Each worker 

must receive a wage statement showing hours of work, hours refused, pay for each 

type of crop, the basis of pay (i.e., whether the worker is being paid by the hour, 

by the piece, “task” pay, etc.). The wage statement must indicate total earnings for 

the pay period and all deductions from wages (along with a statement as to why 

deductions were made). 

Termination of Workers. Employers must maintain records on any worker who 

abandons employment, either voluntarily or involuntarily. To negate a continuing 

liability for wages and benefits to workers, the employer must notify the local Job 

Service of the SWA in writing within 48 hours of either termination or abandonment of 

employment. The report should state the date of the termination/abandonment and 

the reason for it. The employer should also state if it will seek to replace such workers. 

Employee Rights 

H-2A workers and the U.S. workers hired under the job order may file complaints 

about non-compliance with H-2A labor standards with the Wage and Hour Division’s 

local offices (www.dol.gov/esa/contacts/whd/america2.htm). ETA or any SWA will 

forward any complaint received about contractual H-2A labor standards between the 

employer and the employee to the local Wage and Hour Division office for 

appropriate action. 

Compliance Assistance Available 

Information on how to apply for a temporary labor certification, including application 

forms and directives, may be obtained from the SWAs (workforcesecurity.doleta.gov/ 

foreign/contacts.asp). The SWA staffs can help employers fill out applications, place 

agricultural clearance orders, and provide advice on possible recruitment sources. 

Copies of the application forms, regulations and relevant directives may also be 

obtained from the ETA national office (www.doleta.gov/etainfo/ETA_Contacts.cfm). 

Copies of Wage and Hour publications may be obtained from the Wage and 

Hour Division Web site (www.wagehour.dol.gov) or by contacting the Wage 

and Hour Division’s local offices (www.dol.gov/esa/contacts/whd/america2.htm). 

For additional compliance assistance, contact the Wage and Hour Division help 

line at 1– 866–4USWAGE. 

67 
Penalties/Sanctions 

The Wage and Hour Division (www.wagehour.dol.gov) of the Employment Standards 

Administration is responsible for ensuring that employers comply with all contractual 

and regulatory provisions that apply to the employment of H-2A workers and other 

workers engaged in “corresponding employment” under Section 218 of the INA 

(8 U.S.C. §1188). The regulations addressing enforcement by the Wage and Hour 

Division are found at 29 CFR part 501. 

Relation to State, Local, and Other Federal Laws 

Foreign workers employed under the H-2A program are not covered under the 

Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. §1801 

et seq., although U.S. migrant and seasonal agricultural workers in “corresponding 

employment” are covered under MSPA. However, various other laws, such as 

workers’ compensation, tax (unemployment insurance, local, state, and federal), 

the Fair Labor Standards Act, and the Family and Medical Leave Act may apply to 

the employment of these workers. 

68 
Temporary Nonagricultural Workers 

(H-2B Visas) 

Sections 101(a)(15)(H)(ii)(b) and 214(c)(1), 

(c)(14), (g)(1) and (g)(9) of the Immigration 

and Nationality Act, as amended and 20 CFR 

Part 655 Subpart A and 8 CFR Part 214.2(h)(6) 

Who is Covered 

The regulations of the U.S. Citizenship and Immigration Service (USCIS), 8 CFR 

Part 214.2(h)(6), apply to employers who wish to import temporary nonagricultural 

workers classified under Section 101(a)(15)(H)(ii)(b) to work in temporary jobs in 

the United States. Section 214(c)(1) of the Immigration and Nationality Act (INA) 

requires the Department of Homeland Security (DHS) to consult with the Department 

of Labor before determining whether any worker can be admitted under Section 

101(a)(15)(H)(ii)(b). Section 214(g)(1) of the INA provides that the number of aliens 

during any fiscal year who can be issued visas or provided nonimmigrant status 

under Section 101(a)(15)(H) (ii)(b) cannot exceed 66,000. “Returning workers” 

who counted toward the H-2B cap in prior years are excluded from the cap from 

October 1, 2004 through September 30, 2006. 

Basic Provisions/Requirements 

USCIS regulations require that employers who file H-2B petitions with the USCIS 

(except for temporary employment on Guam) must include a certification from the 

Department of Labor stating that qualified workers are not available in the U.S and 

that the foreign worker’s employment will not adversely affect wages and working 

conditions of similarly employed U.S. workers. If the Department of Labor notified the 

employer that certification cannot be made, the employer may submit countervailing 

evidence to USCIS. 

To obtain certification, employers must file applications for certification of temporary 

nonagricultural jobs on Part A of an Application for Alien Employment Certification, 

Form ETA 750 (www.workforcesecurity.doleta.gov/foreign/750inst.asp), with the 

State Workforce Agency (SWA) (http://workforcesecurity.doleta.gov/foreign/ 

contacts.asp) serving the geographic area where the alien will work. To receive 

a timely determination, the employer should apply at least 60 but no more than 

120 days before the workers are needed. 

The employment for which certification is requested must be for less than one year, 

and the need for the service or labor shall be a one-time occurrence, seasonal 

need, peak load need, or intermittent need. General Administrative Letter No. I-95 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

69 
(http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=393), dated November 10, 1994, 

(amended by General Administrative Letter No. I-97 Change 1, dated December 22, 

1997) states the requirements for obtaining temporary nonagricultural labor certifications. 

Other detailed information may also be found on the H-2B Certification for Temporary 

Nonagricultural Work page (http://workforcesecurity.doleta.gov/foreign/h-2b.asp) of 

the Employment and Training Administration’s Web site (www.doleta.gov). 

After receiving an application, the SWA prepares a job order and places it into the 

Employment Service System for 10 days. The employer, after filing the application 

with the SWA, advertises the job opportunity in a newspaper of general circulation for 

three consecutive days, or in a professional, trade, or ethnic publication, whichever is 

most appropriate for the occupation and most likely to bring responses from U.S. workers. 

The employer must also document that unions and other recruitment sources, appropriate 

for the occupation and customary to the industry, could not refer qualified U.S workers. 

After the employer completes the required recruitment, it must submit a recruitment 

report that explains the lawful job-related reasons for not hiring each U.S. worker that 

applied. 

Employee Rights 

The employer seeking to employ H-2B workers must attest that the workers will 

be paid at least the prevailing wages for the occupation in the area of intended 

employment. In addition, worker-protection provisions that apply to U.S. workers 

(e.g., the Fair Labor Standards Act) cover nonimmigrant H-2B workers. Workers may 

file complaints under these general worker protection laws with the local Wage and 

Hour Division offices (www.dol.gov/esa/contacts/whd/america2.htm). 

Compliance Assistance Available 

Employers may obtain information on how to apply for a temporary nonagricultural 

labor certification, including application forms and directives that contain prescribed 

procedural requirements, from the SWAs (http://workforcesecurity.doleta.gov/foreign/ 

contacts.asp) or the national office of the Employment and Training Administration 

(www.doleta.gov). SWA staffs can help employers fill out application forms, place 

job orders, and draft advertisements that meet prescribed requirements. 

Penalties/Sanctions 

The Save Our Small and Seasonal Businesses Act of 2005 (Act) authorized, effective 

October 1, 2005, the imposition of such administrative remedies (including civil 

monetary penalties in an amount not to exceed $10,000 per violation) as DHS 

determines to be appropriate if an employer is found to have committed a substantial 

failure to meet any of the conditions of the petition or a willful misrepresentation of a 

material fact in such petition. The Act permits DHS to delegate to the Secretary of 

Labor the authority to impose sanctions. The Act also authorizes DHS to deny 

petitions filed with respect to these employers for a period of one to five years. 

Relation to State, Local, and Other Federal Laws 

Various other laws, such as workers’ compensation, tax (unemployment insurance, 

local, state, and federal) and the Family and Medical Leave Act, may apply to the 

employment of these workers. 

70 
Workers in Professional and 

Specialty Occupations 

(H-1B and H-1B1 Visas) 

Sections 101(a)(15)(H)(i)(b) and (b1); 212(n) 

and (t), and 214(g) of the Immigration and 

Nationality Act (INA) as amended (8 USC 

§1101(a)(15)(H)(i)(b) and (b1), 1182(n) and (t ), 

1184(g); 20 CFR 655 Subparts H and I) 

Who is Covered 

The H-1B program applies to employers seeking to hire nonimmigrant aliens as 

workers in specialty occupations or as fashion models of distinguished merit and 

ability, using the H-1B nonimmigrant visa classification. The H-1B1 program applies 

to employers seeking to hire nonimmigrant aliens from Chile and Singapore as 

workers in specialty occupations. 

Basic Provisions/Requirements 

The Immigration and Nationality Act (INA) allows employment of alien workers in 

certain specialty occupations (generally those requiring a bachelor’s degree or its 

equivalent). Alien workers such as engineers, teachers, computer programmers, 

medical doctors, and physical therapists may be employed under the H-1B visa 

classification, as may fashion models of distinguished merit and ability. 

The INA sets forth certain prerequisites for employers wishing to employ H-1B and 

H-1B1 nonimmigrant workers. To obtain H-1B or H-1B1 status approval, the employer 

must first file a Labor Condition Application (LCA), Form ETA 9035, or ETA 9035E, 

with the Department of Labor. The employer must state that it will: 

■ Pay the nonimmigrant workers at least the local prevailing wage or the employer’s 

actual wage, whichever is higher; pay for non-productive time in certain 

circumstances; and offer benefits on the same basis as for U.S. workers; 

■ Provide working conditions for H-1B or H-1B1 workers that will not adversely 

affect the working conditions of workers similarly employed; 

■ Not employ an H-1B or H-1B1 worker at a location where a strike or lockout in the 

occupational classification is occurring, and notify the Employment and Training 

Administration (ETA) of any future strike or lockout; and 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

71 
■ On or within 30 days before the date the LCA is filed with ETA, provide notice 

of the employer’s intent to hire H-1B or H-1B1 workers. The employer must 

provide this notice to the bargaining representative of workers in the occupation 

in which the H-1B or H-1B1 worker will be employed. If there is no bargaining 

representative, the employer must post such notices in conspicuous locations 

at the intended place(s) of employment, or provide them electronically. 

H-1B visas are capped at 65,000 during a fiscal year, subject to certain exceptions. 

H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore. 

Additional rules apply to H-1B dependent employers and willful violators of the 

H-1B rules. These rules sunsetted for H-1B employment under LCAs filed after 

September 30, 2003 but were restored effective March 8, 2005 by the H-1B Visa 

Reform Act of 2004. An H-1B dependent employer is, roughly, one whose H-1B 

workers comprise 15% or more of the employer’s total workforce. (Different thresholds 

apply to smaller employers.) H-1B dependent employers who wish to hire only H-1B 

workers who are paid at least $60,000 per year or have a master’s degree or higher in 

a specialty related to the employment can be exempted from these additional rules. 

H-1B dependent employers and willful violator employers must attest to the following 

three elements addressing non-displacement and recruitment of U.S. workers: 

■ The employer will not displace any similarly employed U.S. worker within 90 days 

before or after applying for H-1B status, or an extension of status for any H-1B 

worker; 

■ The employer will not place any H-1B worker employed pursuant to the LCA at the 

worksite of another employer unless the employer first makes a bona fide inquiry 

as to whether the other employer has displaced or intends to displace a similarly 

employed U.S. worker within 90 days before or after the placement of the H-1B 

worker; and 

■ The employer, before applying for H-1B status for any alien worker pursuant to an 

H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the 

alien worker is sought, at wages at least equal to those offered to the H-1B worker. 

Also, the employer will offer the job to any U.S. worker who applies and is equally 

or better qualified than the H-1B worker. This attestation does not apply if the H-1B 

worker is a “priority worker” within the meaning of Section 203(b)(1)(A), (B), or 

(C) of the INA.

After the Department of Labor certifies the LCA, the employer will apply to the 

U.S. Citizenship and Immigration Services (USCIS) (www.uscis.gov/) for approval 

to employ an alien worker under H-1B status so that alien workers may be hired. 

For H-1B1 visas, after the Department of Labor certifies the LCA, the employer must 

follow the procedures of USCIS and the Department of State, which differ in some 

respects from procedures for H-1B visas. 

Employee Rights 

H-1B and H-1B1 workers are granted a number of important rights. The employer 

must give the worker a copy of the LCA. The employer must pay the worker at 

least the same wage rate as paid to other employees with similar experience 

and qualifications or the local prevailing wage for the occupation in the area of 

employment, whichever is higher. The employer must pay for non-productive time 

caused by the employer or by the worker’s lack of a license or permit. The employer 

must offer the worker fringe benefits on the same basis as its other employees. 

72 
Also, the employer may not require the worker to pay a penalty for leaving 

employment prior to any agreed date. However, this restriction does not preclude 

the employer from seeking “liquidated damages” pursuant to relevant state law. 

Liquidated damages are generally estimates stated in a contract of the anticipated 

damages to the employer caused by the worker’s breach of contract. 

U.S. workers and job applicants may also have certain rights under the H-1B and

H-1B1 programs. U.S. workers employed by an H-1B dependent or willful violator 

employer may not be laid off within 90 days before or after the employer files a USCIS 

petition to employ an H-1B worker in an essentially equivalent job. In addition, an 

H-1B dependent employer or willful violator must offer the job to any U.S. worker 

who applies and is equally or better qualified for the job than the H-1B alien worker. 

The U.S. Department of Justice has the authority to investigate complaints of failure 

to hire qualified U.S. workers. 

No employer of H-1B or H-1B1 workers may intimidate, threaten, blacklist, discharge, 

or in any other manner discriminate against any employee, former employee, or job 

applicant for disclosing violations of H-1B or H-1B1 provisions or for cooperating in 

an official investigation of the employer’s compliance. 

U.S. workers and H-1B/H-1B1 workers may also examine the public disclosure 

documents that the employer is required to maintain that provide information about 

the employer’s compliance with the attestation elements. 

Complaints about non-compliance with H-1B/H-1B1 labor standards may be filed with 

local Wage and Hour Division offices (www.dol.gov/esa/contacts/whd/america2.htm). 

Compliance Assistance Available 

Information on filing and processing LCAs may be found on the Foreign Labor 

Certification page (atlas.doleta.gov/foreign/) of the Employment and 

Training Administration’s (ETA) Web site. Links to the Federal Register that contain 

detailed technical regulations controlling the H-1B and H-1B1 program, as well as 

non-technical information, may be found on ETA’s H-1B Specialty (Professional) 

Workers page (www.workforcesecurity.doleta.gov/foreign/h-1b.asp). 

More detailed information may also be obtained by contacting the national office of 

ETA (www.doleta.gov) or the Wage and Hour Division (www.wagehour.dol.gov) of 

the Employment Standards Administration (1–866–4USWAGE). Information on how to 

submit a petition requesting an H-1B or H-1B1 visa may be obtained from the USCIS. 

Penalties/Sanctions 

When violations are found, the Administrator of the Wage and Hour Division may 

assess civil money penalties with maximums ranging from $1,000 to $35,000 per 

violation, depending on the type and severity of the violation. The Administrator may 

also impose other remedies, including payment of back wages. 

Within 15 days of the date of the determination, any interested party may request a 

hearing on the Wage and Hour Administrator’s determination before an Administrative 

Law Judge (ALJ). Within 30 days of the decision by an ALJ, an interested party 

may request a review of the ALJ’s decision by the Department’s Administrative 

Review Board. 

73 
Employers found to have committed certain violations may also be precluded 

from future access to the H-1B program and other immigrant programs for a period 

of at least one year. 

Effective March 8, 2005, an H-1B employer will be considered in compliance 

notwithstanding a technical or procedural failure if such employer: 

■ Makes a good faith attempt to comply; 

■ Voluntarily corrects violations within 10 business days of being advised by an 

enforcement authority; 

■ Has not engaged in a pattern or practice of willful violations; and 

■ For prevailing wage violations, can establish that the wage was calculated 

consistent with recognized industry standards and practices. 

Relation to State, Local, and Other Federal Laws 

Various other laws, such as worker’s compensation, tax (unemployment insurance, 

local, state, and federal), the Fair Labor Standards Act, and the Family and Medical 

Leave Act, may apply to the employment of these workers. 

74 
Immigration for Workers 

Obtaining Permanent Employment 

in the United States 

Sections 203 and 212(a)(5)(A) of 

the Immigration and Nationality Act 

(8 USC §1101 et seq.; 20 CFR Part 656) 

Who is Covered 

Section 212(a)(5)(A) of the Immigration and Nationality Act (INA) applies to 

employers seeking to hire foreign workers immigrating to the United States for the 

purpose of permanent employment. 

Basic Provisions/Requirements 

A permanent labor certification issued by the Department of Labor (DOL) is 

most often the first step in allowing an employer to hire a foreign worker to work 

permanently in the United States. In most instances, before the U.S. employer 

can submit an immigration petition to the Department of Homeland Security’s U.S. 

Citizenship and Immigration Services (USCIS), the employer must obtain an approved 

labor certification from the DOL’s Employment and Training Administration (ETA). 

The DOL must certify to the USCIS that there are no U.S. workers able, willing, 

qualified, and available to accept the job at the prevailing wage for that occupation 

in the area of intended employment and that employment of the alien will not 

adversely affect the wages and working conditions of similarly employed 

U.S. workers.

To improve the operations of the permanent labor certification program, 

ETA published a final regulation on December 27, 2004, which required the 

implementation of a new re-engineered permanent labor certification program 

by March 28, 2005. Under the provisions of the new rule, an employer must file 

with ETA an Application for Permanent Employment Certification (ETA Form 9089). 

The application describes in detail the job duties, educational requirements, 

training, experience, and other special capabilities the employee must possess 

to do the work, and a statement of the prospective immigrant’s qualifications. 

Prior to filing ETA Form 9089 with ETA, the employer must request a prevailing wage 

determination from the State Workforce Agency (SWA) having jurisdiction over the 

proposed area of intended employment. In addition, the employer (except for 

those applications involving college or university teachers selected pursuant to 

a competitive recruitment and selection process, Schedule A occupations, 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

75 
and sheepherders) must attest, in addition to a number of other conditions of 

employment, to having conducted certain recruitment activities to find U.S. 

workers prior to filing the application. 

The employer must recruit under the standards for professional occupations 

set forth in 20 CFR Part 656.17(e)(1) if the occupation involved is on the list of 

occupations, published in Appendix A to the preamble of the final regulation, 

for which a bachelor’s or higher degree is a customary requirement. For all other 

occupations not normally requiring a bachelor’s or higher degree, employers 

can recruit under the requirements for nonprofessional occupations at 20 CFR 

part 656.17(e) (2). 

Employee Rights 

All appropriate protections under U.S labor laws apply to workers using a 

permanent labor certification from DOL. 

Compliance Assistance Available 

Employers may obtain information on how to apply for a permanent labor 

certification, including application forms and regulatory and procedural requirements, 

from ETA’s Web site (www.doleta.gov). Copies of the regulation and application 

forms are available on the Foreign Labor Certification page of the ETA Web site 

(http://atlas.doleta.gov/foreign/). Employers should submit their applications for 

permanent labor certification (ETA Form 9089) using the Permanent Online System 

(www.plc.doleta.gov/). 

Penalties/Sanctions 

If possible fraud or willful misrepresentation involving a labor certification is 

discovered before a final labor certification determination, ETA will refer the matter 

to the Department of Homeland Security (DHS) for investigation. In addition, ETA 

can take steps to revoke an approved labor certification if ETA finds the certification 

was not justified, including if fraud or willful misrepresentation is discovered. 

Additionally, DHS or the Department of State may invalidate a labor certification if 

the agency determines there has been fraud or willful misrepresentation involving 

the labor certification. 

Relation to State, Local, and Other Federal Laws 

Various other laws, such as workers’ compensation, tax (unemployment insurance, 

local, state, and federal), the Fair Labor Standards Act, and the Family Medical 

and Leave Act, may apply to the employment of workers with a permanent 

labor certification. 

76 
Crewmembers (D-1 Visas)

Sections 101(a)(15)(D)(i) and 258 of the 

Immigration and Nationality Act (INA) 

(8 USC §1101 et seq.; 20 CFR Part 655, 

Subparts F and G) 

Who is Covered 

These provisions apply to vessels/employers seeking to employ their nonimmigrant 

aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas. 

Basic Provisions/Requirements 

The Immigration and Nationality Act (INA) prohibits alien crewmembers (D-visa 

holders) from performing longshore work in U.S. ports unless one of the following 

provisions applies: 

■ A reciprocity agreement between the U.S. and the vessel/employer’s country 

is in place; 

■ A port’s collective bargaining agreement(s) allows the employment of 

D-visa workers to perform longshore work; 

■ The vessel/employer filed an attestation (Form ETA 9033) with the 

Department of Labor under the prevailing practice exception; 

■ The vessel/employer filed an attestation (Form ETA 9033-A) with the 

Department of Labor under the State of Alaska exception; or 

■ The longshore activity is performed with the use of an automated vessel. 

The Employment and Training Administration (ETA) (www.doleta.gov) administers 

the attestation process under the prevailing practice and State of Alaska exceptions. 

The Wage and Hour Division (www.wagehour.dol.gov) of the Employment Standards 

Administration investigates and resolves complaints that the employer failed to meet 

conditions to which it attested, misrepresented a material fact in an attestation, 

or failed to use the automated vessel exception properly. Complaints about 

such matters should be filed with the local Wage and Hour Division offices 

(www.dol.gov/esa/contacts/whd/america2.htm). 

Employee Rights 

U.S. workers have the right not to have foreign crewmembers on D-visas perform

longshore work during a strike or lockout in the course of a labor dispute. Also, the 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

77 
performance of the longshore work by foreign crewmembers must not be intended 

to influence an election of a bargaining representative for workers in the local port. 

The employer must provide notice of the filing of an attestation to longshore workers 

employed at the local port. Any aggrieved party or organization (including bargaining 

representatives in the local port) may file a complaint alleging a misrepresentation 

on an attestation or a failure to comply with the terms thereof. 

Under the State of Alaska exception, an employer must make a bona fide request 

for and employ U.S. workers who are qualified and available in sufficient numbers 

to perform the longshore work. Only where sufficient U.S. longshore workers are 

unavailable may the employer use alien crewmembers to perform the work. 

U.S. workers have a right to protection against discrimination. No employer may 

intimidate, threaten, blacklist, discharge, or in any other manner discriminate against 

any person for disclosing violations of the regulations or for cooperating in an official 

investigation of the employer’s compliance. 

Compliance Assistance Available 

General information on the filing of attestations under the prevailing practice and 

State of Alaska exceptions may be accessed on the D-1 Crewmembers Certification 

page (www.ows.doleta.gov/foreign/d-1.asp) of the ETA Web site (www.doleta.gov). 

More detailed information may be obtained by contacting the national office of the 

Employment and Training Administration (www.doleta.gov or 1–877–US–2JOBS) 

and the Wage and Hour Division (www.wagehour.dol.gov or 1– 866–4USWAGE). 

Penalties/Sanctions 

When violations are found, the Wage and Hour Division may assess a civil money 

penalty not to exceed $5,000 per crewmember employed in violation of the D-1 visa 

requirement and other appropriate remedies. Any interested party may request a 

hearing on the Wage and Hour Administrator’s determination before an Administrative 

Law Judge, and any interested party may petition the Secretary of Labor to review 

the Administrative Law Judge’s decision. 

During an investigation, the Wage and Hour Division may enter a “cease and desist” 

order against the employer. When a “cease and desist” order has been entered, 

an employer may not use the services of D-visa crewmembers. Vessels owned by 

an employer found in violation of this program will not be allowed to enter U.S. ports 

and may be precluded from future access to the D-1 program for up to one year. 

Relation to State, Local, and Other Federal Laws 

Various other laws, such as the Fair Labor Standards Act, may apply to these workers. 

78 
Wages in Supply and Equipment 

Contracts 

Walsh–Healey Public Contracts Act (PCA) 

(41 USC §35 et seq.; 41 CFR Parts 50-201, 202, 

and 206) 

Who is Covered 

The Walsh–Healey Public Contracts Act (PCA) applies to contractors with contracts in 

excess of $10,000 for the manufacturing or furnishing of materials, supplies, articles, 

or equipment to the U.S. government or the District of Columbia. The Act covers 

employees who produce, assemble, handle, or ship goods under these contracts. 

The Act does not apply to executive, administrative, and professional employees, 

or to outside salespersons exempt from the minimum wage and overtime provisions 

of the Fair Labor Standards Act. Nor does it apply to certain office and custodial 

workers. 

Certain contracts are not covered by this Act. They include: 

■ Purchases of materials, supplies, articles, or equipment as may usually be 

bought in the “open market”; 

■ Purchases of perishables; 

■ Purchases of agricultural products from the original producers; 

■ Contracts made by the Secretary of Agriculture for the purchase of agricultural 

commodities or products; 

■ Contracts for public utility services and certain transportation and communication 

services; 

■ Supplies manufactured or furnished outside the U.S. (including Puerto Rico) 

or the Virgin Islands; and 

■ Contracts administratively exempted by the Secretary of Labor in special 

circumstances because of the public interest or to avoid serious impairment 

of government business. 

Basic Provisions/Requirements 

Covered contractors must pay employees on the contracts the federal minimum 

wage of $5.15 an hour. The employers may pay special lower rates to apprentices, 

students in vocational education programs, and disabled workers if they obtain special 

certificates from the Department of Labor. Employees must also be paid one and 

one-half times their regular rate of pay for all hours worked over 40 in a workweek. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

79 
The Act prohibits the employment of youths less than 16 years of age and 

convicts, except under certain conditions. Not included in convict labor are 

persons paroled, pardoned, or discharged from prison, or prisoners participating 

in a work-release program. 

Employee Rights 

The PCA provides employees on covered federal contracts the right to be paid at 

least the minimum wage for all hours worked and time and one-half their regular rate 

of pay for overtime hours. The Wage and Hour Division of the Department of Labor’s 

Employment Standards Administration accepts complaints of alleged PCA violations. 

Compliance Assistance Available 

The Wage and Hour Division (www.wagehour.dol.gov) of the Employment Standards 

Administration enforces the wage and hour requirements of the Act. Additional 

compliance assistance information is available from the Wage and Hour Division’s local 

offices (www.dol.gov/esa/contacts/whd/america2.htm), the Wage and Hour Division’s 

Web site (www.wagehour.dol.gov), or by contacting the Wage and Hour Division 

help line at 1– 866–4USWAGE. 

Penalties/Sanctions 

Contractors and subcontractors who violate the Act may be subject to a variety of 

penalties. The underpayment of wages and overtime pay may result in the withholding 

of contract payments in amounts sufficient to reimburse the underpayment. The 

penalty for employing underage minors or convicts is $10 per day per person, for 

which contract payments may also be withheld. The Department may also bring 

legal action to collect wage underpayment and fines for illegally employing minors 

and convicts. Willful violations may subject the employer to cancellation of the 

current contract and debarment from future federal contracts for a three-year period. 

After an investigator has served a formal complaint to the contractor, a hearing is held 

before an Administrative Law Judge. If the respondent has violated the Act, he or she 

can appeal the decision by filing a petition for review with the Administrative Review 

Board. Final determinations on violations and debarment may be appealed to and 

are enforceable through the federal courts. 

Relation to State, Local, and Other Federal Laws 

State and local laws regulating wages and hours of work may also apply to 

employment subject to this Act. When this happens, the employer must observe 

the law setting the stricter standard. Compliance with the regulation’s safety and 

health standards will not relieve anyone of any obligation to comply with stricter 

standards from another source. 

The Walsh–Healey Public Contracts Act and the Fair Labor Standards Act may 

apply simultaneously to the same employer. 

80 
Prevailing Wages in Service 

Contracts 

McNamara–O’Hara Service Contract Act (SCA) 

(41 USC §351 et seq.; 29 CFR Parts 4, 6, and 8) 

Who is Covered 

The McNamara–O’Hara Service Contract Act (SCA) covers contracts entered into by 

federal and District of Columbia agencies where the principal purpose of the contract 

is to furnish services in the U.S. through the use of “service employees.” The definition 

of “service employee” includes any employee engaged in performing services on a 

covered contract other than a bona fide executive, administrative, or professional 

employee who meets the exemption criteria set forth in 29 CFR Part 541. 

The Act does not apply to certain types of contractual services. These statutory 

exemptions include: 

■ Contracts for construction, alteration, and/or repair of public buildings or public 

works, including painting and decorating (those covered by the Davis–Bacon Act); 

■ Work required in accordance with the provisions of the Walsh–Healey Public 

Contracts Act; 

■ Contracts for transporting freight or personnel where published tariff rates are 

in effect; 

■ Contracts for furnishing services by radio, telephone, telegraph, or cable 

companies subject to the Communications Act of 1934; 

■ Contracts for public utility services; 

■ Employment contracts providing for direct services to a federal agency by 

an individual or individuals; 

■ Contracts for operating postal contract stations for the U.S. Postal Service; 

■ Services performed outside the U.S. (except in territories administered by the 

U.S., as defined in the Act); and 

■ Contracts administratively exempted by the Secretary of Labor in special 

circumstances because of the public interest or to avoid serious impairment 

of government business. 

Basic Provisions/Requirements 

The Act requires contractors and subcontractors performing services on prime 

contracts in excess of $2,500 to pay service employees in various classes no less 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

81 
than the wage rates and fringe benefits found prevailing in the locality, or the rates 

(including prospective increases) contained in a predecessor contractor’s collective 

bargaining agreement. The Department of Labor issues wage determinations on a 

contract-by-contract basis in response to specific requests from contracting agencies. 

These determinations are incorporated into the contract. 

For contracts equal to or less than $2,500, contractors are required to pay the 

federal minimum wage of $5.15 an hour (as of September 1, 1997) as provided 

in Section 6(a)(1) of the Fair Labor Standards Act. Contractors must also, under the 

provisions of the Contract Work Hours and Safety Standards Act and the Fair Labor 

Standards Act, pay employees at least one and one-half times their regular rate of 

pay for all hours worked over 40 in a workweek. 

Finally, employers must notify employees working in connection with the contract 

of the compensation due them under the wage and fringe benefits provisions of 

the contract. 

Employee Rights 

The SCA provides covered service workers on federal service contracts the right to 

receive at least the locally prevailing wage rate and fringe benefits, as determined by 

the Department of Labor, for the type of work performed. The Wage and Hour Division 

of the Employment Standards Administration accepts complaints of alleged SCA 

wage violations. 

Compliance Assistance Available 

The Wage and Hour Division (www.wagehour.dol.gov) of the Employment Standards 

Administration enforces the wage and hour requirements of the Act. More detailed 

compliance assistance information, including copies of explanatory brochures and 

regulatory and interpretative materials, may be obtained by contacting the Wage and 

Hour Division’s local offices (www.dol.gov/esa/contacts/whd/america2.htm). 

Compliance assistance information may also be obtained on the Wage and Hour 

Division’s Web site (www.wagehour.dol.gov) or by contacting the Wage and Hour 

Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

Violations of the SCA may result in contract terminations and liability for any resulting 

costs to the government, withholding of contract payments in sufficient amounts 

to cover wage and fringe benefit underpayments, legal action to recover the 

underpayments, and debarment from future contracts for up to three years. 

Contractors and subcontractors may challenge determinations of violations and 

debarment before an Administrative Law Judge. Contractors and subcontractors may 

appeal decisions of Administrative Law Judges to the Administrative Review Board. 

Final Board determinations on violations and debarment may be appealed to and 

are enforceable through the federal courts. 

Relation to State, Local, and Other Federal Laws 

This Act applies only to contracts awarded by the federal or District of Columbia 

governments. As noted above, contractors are required to compensate employees 

working in connection with covered contracts for overtime work in accordance with 

the overtime pay standards of the Fair Labor Standards Act and the Contract Work 

Hours and Safety Standards Act. 

82 
Prevailing Wages in Construction 

Contracts 

Davis–Bacon Act and Related Acts 

(40 USC §276a; 29 CFR Parts 1, 3, 5, 6 and 7) 

Who is Covered 

The Davis–Bacon and Related Acts apply to contractors and subcontractors 

performing on federally funded or assisted contracts in excess of $2,000 for the 

construction, alteration, or repair (including painting and decorating) of public 

buildings or public works. 

Basic Provisions/Requirements 

The Act requires that all contractors and subcontractors performing on federal 

contracts (and contractors or subcontractors performing on federally assisted 

contracts under the related Acts) in excess of $2,000 pay their laborers and 

mechanics not less than the prevailing wage rates and fringe benefits, as 

determined by the Secretary of Labor, for corresponding classes of laborers 

and mechanics employed on similar projects in the area. 

Apprentices and trainees may be employed at less than predetermined rates. 

Apprentices must be employed pursuant to an apprenticeship program registered 

with the Department of Labor or with a state apprenticeship agency recognized 

by the Department. Trainees must be employed pursuant to a training program 

certified by the Department. 

Contractors and subcontractors on prime contracts in excess of $100,000 are 

also required, pursuant to the Contract Work Hours and Safety Standards Act, 

to pay employees one and one-half times their basic rates of pay for all hours 

over 40 worked on covered contract work in a workweek. 

Covered contractors and subcontractors are also required to pay employees 

weekly and to submit weekly certified payroll records to the contracting agency. 

Employee Rights 

The Davis–Bacon and Related Acts provide laborers and mechanics on covered 

federally financed or assisted construction contracts the right to receive at least 

the locally prevailing wage rate and fringe benefits, as determined by the 

Department of Labor, for the type of work performed. The Wage and Hour Division 

(www.wagehour.dol.gov) of the Department’s Employment Standards Administration 

and respective federal contracting agencies accept complaints of alleged 

Davis–Bacon violations. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

83 
Compliance Assistance Available 

The Wage and Hour Division of the Employment Standards Administration administers 

and enforces the Davis–Bacon Act. More detailed information, including copies of 

explanatory brochures and regulatory and interpretative materials, may be obtained 

by contacting the Wage and Hour Division’s local offices (www.dol.gov/esa/contacts/ 

whd/america2.htm). Compliance assistance information may also be obtained on 

the Wage and Hour Division’s Web site (www.wagehour.dol.gov) or by contacting 

the Wage and Hour Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

Contractors or subcontractors found to have disregarded their obligations to 

employees, or to have committed aggravated or willful violations while performing 

work on Davis–Bacon covered projects, may be subject to contract termination and 

debarment from future contracts for up to three years. In addition, contract payments 

may be withheld in sufficient amounts to satisfy liabilities for unpaid wages and 

liquidated damages that result from overtime violations of the Contract Work Hours 

and Safety Standards Act. 

Contractors and subcontractors may challenge determinations of violations and 

debarment before an Administrative Law Judge (ALJ). Contractors and subcontractors 

may appeal decisions by ALJs with the Department’s Administrative Review Board. 

Final Board determinations on violations may be appealed to and 

are enforceable through the federal courts. 

Falsification of certified payroll records or the required kickback of wages may 

subject a contractor or subcontractor to civil or criminal prosecution, the penalty 

for which may be fines and/or imprisonment. 

Relation to State, Local, and Other Federal Laws 

Since 1931, Congress has extended the Davis–Bacon prevailing wage requirements 

to some 60 related Acts, which provide federal assistance for construction through 

loans, grants, loan guarantees, and insurance. These Acts include by reference 

the requirements for payment of the prevailing wages in accordance with the 

Davis–Bacon Act. Examples of the related Acts are the Federal-Aid Highway Acts, 

the Housing and Community Development Act of 1974, and the Federal Water 

Pollution Control Act. 

84 
Hours and Safety Standards 

in Construction Contracts 

Contract Work Hours and Safety Standards Act 

(CWHSSA) (40 USC §327 et seq.; 29 CFR Part 5) 

Who is Covered 

The Contract Work Hours and Safety Standards Act (CWHSSA) applies to contractors 

and subcontractors with federal service contracts and federally funded and assisted 

construction contracts over $100,000. Covered contracts include those entered into 

by the U.S., any agency or instrumentality of the U.S., any territory of the U.S., or the 

District of Columbia. 

The Act also extends to federally assisted construction contracts subject to 

Davis–Bacon Act and Related Acts wage standards where the federal government is 

not a direct party, except those contracts where the federal assistance takes the form 

only of a loan guarantee or insurance. 

Certain contracts are exempt from this Act. These include contracts for the following: 

■ Transportation by land, air, or water; 

■ Transmission of intelligence; 

■ Purchase of supplies, materials, or articles ordinarily available in the “open market”; 

■ Work required to be done according to provisions of the Walsh–Healey Public 

Contracts Act; and 

■ Contracts administratively exempted by the Secretary of Labor in special 

circumstances because of the public interest or to avoid serious impairment 

of government business. 

Basic Provisions/Requirements 

The Act requires contractors and subcontractors with covered contracts to pay 

laborers and mechanics employed in the performance of the contracts one and 

one-half times their basic rate of pay for all hours worked over 40 in a workweek. 

Employee Rights 

The CWHSSA provides most workers on federal contracts the right to receive time and 

one-half for overtime hours worked on such contracts. The Wage and Hour Division of 

the Department of Labor’s Employment Standards Administration accepts complaints 

of alleged CWHSSA wage violations. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

85 
Compliance Assistance Available 

The Wage and Hour Division (www.wagehour.dol.gov) of the Employment Standards 

Administration enforces the compensation requirements of this Act. More detailed 

information, including copies of explanatory brochures and regulatory and interpretative 

materials, may be obtained by contacting the Wage and Hour Division’s local offices 

(www.dol.gov/esa/contacts/whd/america2.htm). Compliance assistance information 

may also be obtained on the Wage and Hour Division’s Web site (www.wagehour.dol.gov) 

or by contacting the Wage and Hour Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

Contractors or subcontractors who violate this Act may be subject to fines, 

imprisonment, or both. Intentional violations of this Act are misdemeanors and 

may be punished by a fine not to exceed $1,000 or by imprisonment for not more 

than six months, or both. Overtime wage violations may result in the assessment 

of liquidated damages in the sum of $10 for each calendar day an employee is 

allowed to work in excess of a 40-hour workweek without payment of the 

required overtime compensation. 

Accrued contract amounts may also be withheld in sums necessary to satisfy 

the liability for unpaid wages and liquidated damages. Employees have rights of 

action and/or of intervention against the contractor and its sureties if the amounts 

withheld are insufficient to reimburse the unpaid wages. Under such an action, 

it is no defense that employees accepted less than the required rate of wages or 

voluntarily made refunds. 

Contractors or subcontractors found to have committed willful or aggravated 

violations of the overtime requirements may have their contracts terminated and 

may be declared ineligible to receive future contracts for a period not to exceed 

three years. 

Contractors or subcontractors may challenge determinations of violations before an 

Administrative Law Judge. Contractors or subcontractors may appeal decisions and 

orders of Administrative Law Judges that result in payment of wages or debarment to 

the Administrative Review Board. Final determinations on violations and debarment 

may be appealed to and are enforceable through the federal courts. 

Any contractor or subcontractor aggrieved by withholdings for liquidated damages 

may appeal to the head of the contracting agency. The agency head shall review the 

administrative determination and issue a final order. If the damages sum is determined 

to be incorrect, or the contractor or subcontractor inadvertently violated the provisions 

of the Act while exercising due care, the agency head may recommend appropriate 

adjustments in the liquidated damages to the Secretary of Labor. The contractor or 

subcontractor may file a claim in the U.S. Claims Court for all final orders mandating 

a liability for withholding of liquidated damages. 

Relation to State, Local, and Other Federal Laws 

The provisions of this Act also apply to Davis–Bacon and Related Acts contracts 

where the contract is financed in whole or in part by grants or loans from the 

U.S. Government, or loans insured or guaranteed by the U.S. Government, except

where the federal assistance is only in the nature of a loan guarantee or insurance. 

86 
“Kickbacks” in Federally Funded 

Construction 

Copeland Act 

(18 USC §874 and 40 USC §276c; 29 CFR Part 3) 

Who is Covered 

The “Anti-Kickback” section of the Copeland Act applies to all contractors and 

subcontractors performing on any federally funded or assisted contract for the 

construction, prosecution, completion, or repair of any public building or public 

work, except contracts for which the only federal assistance is a loan guarantee. 

This provision applies even where no labor standards statute covers the contract. 

The regulations pertaining to Copeland Act payroll deductions and submittal of 

the weekly statement of compliance apply only to contractors and subcontractors 

performing on federally funded contracts in excess of $2,000 and federally assisted 

contracts in excess of $2,000 that are subject to federal wage standards. 

Basic Provisions/Requirements 

The “Anti-Kickback” section of the Act precludes a contractor or subcontractor 

from in any way inducing an employee to give up any part of the compensation to 

which he or she is entitled under his or her contract of employment. The Act and 

implementing regulations require a contractor and subcontractor to submit a weekly 

statement of the wages paid to each employee performing on covered work during 

the preceding payroll period. The regulations also list payroll deductions that are 

permissible without the approval of the Secretary of Labor and those deductions 

that require consent of the Secretary of Labor. 

Employee Rights 

The “Anti-Kickback” provisions of the Copeland Act give covered workers on 

subject federal contracts the right to receive the full pay to which they are entitled 

for the work they perform. The Act also gives such workers the right to receive pay 

on a weekly basis. The Wage and Hour Division (www.wagehour.dol.gov) of the 

Department of Labor’s Employment Standards Administration accepts complaints 

of alleged Copeland Act wage violations. 

Compliance Assistance Available 

The Wage and Hour Division (www.wagehour.dol.gov) of the Employment Standards 

Administration enforces the provisions of the Act and implementing regulations. More 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

87 
detailed information, including copies of the regulatory materials, may be obtained by 

contacting the Wage and Hour Division’s local offices (www.dol.gov/esa/contacts/ 

whd/america2.htm). Compliance assistance information may also be obtained on the 

Wage and Hour Division’s Web site (www.wagehour.dol.gov) or by contacting the 

Wage and Hour Division help line at 1–866–4USWAGE. 

Penalties/Sanctions 

Any contractor or subcontractor who induces an employee working on a covered 

contract to give up any part of the compensation to which he or she is entitled 

is subject to a $5,000 fine, or imprisonment for up to five years, or both. Willful 

falsification of the statement of compliance may subject the employer to civil or 

criminal prosecution and may be cause for contract termination or debarment. 

Contractors may challenge determinations on debarment before an Administrative 

Law Judge. Decisions of Administrative Law Judges may be appealed to the 

Administrative Review Board. Final determinations on debarment may be appealed 

to and are enforceable through the federal courts. Civil and criminal sanctions are 

pursued through the federal courts. 

Relation to State, Local, and Other Federal Laws 

The “Anti-Kickback” provisions apply to any contract assisted in whole or in part by 

loans or grants from the federal government, except those contracts where the only 

federal assistance is a loan guarantee. The provisions of the Act and the regulation 

pertaining to the weekly statement of wages and payroll deductions apply to 

federally assisted contracts that are subject to federal wage standards. 

88 
Notice of Employee Rights 

Concerning Payment of Union Dues 

Executive Order 13201 (E.O. 13201) 

Who is Covered 

Executive Order 13201 (E.O. 13201) covers government contractors and 

subcontractors with a contract equal to or above the Simplified Acquisition 

Threshold of $100,000, which was entered into on or after April 28, 2004, and 

resulted from solicitations issued on or after April 18, 2001. 

Basic Provisions/Requirements 

E.O. 13201 requires government contractors to post a notice (the Beck Poster)

informing their employees that they have certain rights related to union membership 

and use of union dues and fees under federal law. These contractors must include 

an employee notice clause in subcontracts or purchase orders entered into in 

connection with a covered contract. The employee notice clause requires 

subcontractors to also post the notice, and to include the requirement in further 

subcontracts. 

The posting requirement does not apply to contractor establishments or construction 

work sites in jurisdiction where state law forbids enforcement of union-security 

agreements. The posting requirement also does not apply to contractor 

establishments or construction work sites where no union has been formally 

recognized by the contractor or certified as the exclusive bargaining representative. 

The posting requirement does not apply to contractor establishments or construction 

work sites that involve a prime contractor and one or more subcontractors at a single 

site where the prime contractor, i.e., the person holding the contract with the 

government contracting agency, has not formally recognized a union and where 

no union has been certified as the exclusive bargaining representative of the prime 

contractor’s employees. 

The E.O. 13201 poster informs employees of their rights under the decisions of the 

Supreme Court in Communications Workers of America v. Beck, 487 U.S. 735 (1988), 

and related cases. Under federal law, employees cannot be required to join a 

union or maintain membership in a union in order to retain their jobs. Under certain 

conditions, the law permits a union and an employer to enter into a union-security 

agreement requiring employees to pay uniform periodic dues and initiation fees. 

However, employees who are not union members can object to the use of their 

payments for certain purposes and can only be required to pay their share of 

union costs relating to collective bargaining, contract administration, and 

grievance adjustment. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

89 
If employees do not want to pay that portion of dues or fees used to support 

activities not related to collective bargaining, contract administration, or grievance 

adjustment, they are entitled to an appropriate reduction in their payment. If an 

employee believes that he/she has been required to pay dues or fees used in part 

to support activities not related to collective bargaining, contract administration, 

or grievance adjustment, that employee may be entitled to a refund and to an 

appropriate reduction in future payments. Further information concerning these 

rights is available from the National Labor Relations Board (NLRB). To locate 

the nearest NLRB office, see their Web site at www.nlrb.gov or call toll-free 

1– 866–667– 6572. 

Employee Rights 

Complaints alleging violations of E.O. 13201 may be filed with any office of the 

Employment Standards Administration’s Office of Labor-Management Standards 

(OLMS) (www.dol.gov/esa/olms_org.htm) or Office of Federal Contract Compliance 

Programs (OFCCP) (www.dol.gov/esa/ofccp/). 

Compliance Assistance Available 

Additional information and compliance assistance about E.O. 13201 and the posting 

requirement, including copies of the poster, are available on the Executive Order 

13201 Compliance Assistance page (www.dol.gov/esa/regs/compliance/olms/ 

EO13201_CA.htm) of the Department of Labor’s Office of Labor-Management 

Standards (OLMS) Web site (www.dol.gov/esa/olms_org.htm) or by calling the 

Department’s Toll-Free Help Line 1–866–4–USA–DOL (1–866–487–2365). 

Penalties/Sanctions 

If, after administrative enforcement proceedings, the Assistant Secretary for 

Employment Standards finds that a contractor has violated the Executive Order, 

the Assistant Secretary may: 

■ Direct a contracting agency to cancel, terminate, suspend, or cause to be 

canceled, terminated, or suspended, any contract or any portions thereof, for 

failure of the contractor to comply with its contractual provisions as required by 

section 2 of E.O. 13201 and the implementing regulations. Contracts may be 

canceled, terminated, or suspended absolutely, or continuance of contracts 

may be conditioned upon compliance; 

■ Issue an order of debarment under section 6(b) of the Order providing that one 

or more contracting agencies must refrain from entering into further contracts, or 

extensions or other modification of existing contracts, with any non-complying 

contractor. 

Relation to State, Local, and Other Federal Laws 

The employee rights described in the E.O. 13201 poster are based on Supreme 

Court decisions involving the Labor Management Relations Act, 1947, and the Railway 

Labor Act. The posting requirement does not apply to contractor establishments 

or construction work sites in jurisdiction where state law forbids enforcement of 

union-security agreements. 

90 
Employment Discrimination and 

Equal Opportunity in Supply and 

Service Contracts 

Executive Order 11246, as amended 

(Parts II, III, and IV) (41 CFR Chapter 60, 

Parts 60-1, 60-2, 60-3, 60-20, and 60-50) 

Who is Covered 

Executive Order 11246 and its implementing regulations cover employers with 

federal contracts or subcontracts that exceed $10,000 or that will (or can reasonably 

be expected to) accumulate to more than $10,000 in any 12-month period. 

Contracts covered by the Executive Order and regulations may be for the purchase, 

sale, or use of personal property, nonpersonal services, or both. In this context, the 

term “personal property” includes supplies and contracts for the use of real property, 

such as lease arrangements, unless the contract for the use of real property is itself 

considered real property (such as with easements). The term “nonpersonal services” 

includes services such as utilities, construction, transportation, research, insurance, 

and fund depository. Agreements in which the parties stand in the relationship of 

employer and employee are not covered. 

The following types of contracts and subcontracts are exempt from the Executive 

Order: 

■ Those not exceeding $10,000; 

■ Those for indefinite quantities, unless the purchaser has reason to believe that 

the cost in any one year will be over $10,000; and 

■ Those for work that is performed outside the U.S. by employees who were not 

recruited in the U.S. 

Specific exemptions may apply to the following: 

■ Contracts and subcontracts with certain religiously-oriented educational 

institutions; 

■ Contracts and subcontracts for work on or near Indian reservations; 

■ Contracts and subcontracts involving national security, if the head of the contracting 

agency determines both that (1) the contract is essential to national security, and 

(2) noncompliance with a particular requirement of the Executive Order or the

regulations with respect to the process of awarding the contract is essential to

national security;

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

91 
■ Specific contracts or subcontracts, if the Deputy Assistant Secretary decides 

that special circumstances in the national interest require such an exemption; 

■ Contractor facilities not related to contract performance, as determined by the 

Office of Federal Contract Compliance Programs (OFCCP) within the Department 

of Labor’s Employment Standards Administration (ESA); and 

■ Contracts and subcontracts with state or local governments, except for the 

specific government entity that participates in work on or under the contract. 

Moreover, contractors or subcontractors that are religious entities may grant 

employment preferences to individuals of a particular religion to perform work 

connected with carrying out the activities of the religious entity. 

Basic Provisions/Requirements 

The Executive Order requires covered contractors and subcontractors to refrain 

from discrimination and to engage in affirmative steps to ensure that applicants and 

employees receive equal employment opportunity regardless of race, color, religion, 

sex, and/or national origin. Sexual harassment is a violation of the Executive Order. 

The Order requires all covered contractors and subcontractors to include a specific 

equal opportunity clause in each of their nonexempt contracts and subcontracts. 

The Order and the regulations provide the required language (www.dol.gov/esa/ 

regs/statutes/ofccp/eo11246.htm) for this clause. 

The Department of Labor’s regulations prohibit discrimination in such employment 

practices as recruitment, rates of pay, upgrading, layoff, promotion, and selection 

for training. Employers may not make distinctions based on race, color, religion, sex, 

or national origin in recruitment or advertising efforts, employment opportunities, 

wages, hours, job classifications, seniority, retirement ages, or job fringe benefits such 

as employer contributions to company pension or insurance plans. The regulations 

include other requirements, such as those summarized below. 

Nonconstruction (supply and service) contractors and subcontractors that employ 

50 or more persons and that also satisfy at least one of four additional criteria 

(e.g., having a federal contract of $50,000 or more) must develop written affirmative 

action programs (AAPs). Usually an AAP must cover each of the contractor’s 

establishments. 

If a contractor wishes to establish an AAP other than by establishment, the contractor 

may reach agreement with OFCCP on the development and use of functional AAPs, 

which are organized along functional or business lines. The AAP is a management 

tool designed to encourage equal employment opportunity. 

In general, the AAP will describe the policies, practices, and procedures that the 

contractor or subcontractor uses to ensure that all qualified applicants and employees 

receive equal opportunities for employment and advancement. If the contractor or 

subcontractor is not employing women or minorities at a rate to be expected given 

their availability in the relevant labor pool, the AAP will include specific practical steps 

to address the issue. Contractors with AAPs must implement them, keep them on file, 

and update them annually. Additional information on AAPs may be found on the 

Government Contractors, Affirmative Action Requirements Final Rule Web page 

(www.dol.gov/esa/regs/fedreg/final/2000028693.htm). 

Covered contractors and subcontractors, regardless of company size, may not use 

exclusionary policies that treat men and women differently. For example, a contractor 

92 
or subcontractor that hires or promotes a man who has young children cannot deny 

a job or a promotion to a woman because she has young children. 

Covered contractors and subcontractors also may not depend on state “protective” 

laws to deny employment to qualified female applicants. Such “protective” laws 

include those prohibiting women from performing certain types of occupations, 

from working more than a certain number of hours, or from lifting more than a certain 

amount of weight. 

Covered contractors and subcontractors that qualify as “employers” under Title VII of 

the Civil Rights Act of 1964 are required to comply with the Pregnancy Discrimination 

Act of 1978. Additional information on this law may be found on the Equal Employment 

Opportunity Commission’s Facts About Pregnancy Discrimination Web page at 

www.eeoc.gov/facts/fs-preg.html. All covered contractors and subcontractors must 

also provide equal fringe benefits, and make equal contributions for such benefits 

for men and women. 

Moreover, employers are required to take all necessary actions to ensure that no 

one attempts to intimidate or discriminate against an individual for filing a complaint 

or participating in a proceeding under the Executive Order. 

Employee Rights 

Anyone has the right to file a complaint with OFCCP if he or she believes that a federal 

contractor or subcontractor has discriminated on the basis of race, color, religion, 

sex, or national origin. In most cases, complaints must be filed within 180 days of 

the discriminatory action. Anyone may call OFCCP with a question about interpreting 

the regulations, filing a complaint, or any other related matter. 

The main telephone numbers for OFCCP’s national offices are 202–693–0101 and 

202–693–1308 (TTY). Additional telephone numbers for OFCCP may be found at 

OFCCP’s Office Contact Web page (www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm). 

Compliance Assistance Available 

More detailed compliance assistance information, including copies of explanatory 

brochures and regulatory and interpretative materials, may be obtained from the 

OFCCP Web site (www.dol.gov/esa/ofccp) or by contacting OFCCP’s local offices 

(www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm). Further assistance is available 

from OFCCP’s Toll-Free Help Desk at 1–800–397–6251. 

Penalties/Sanctions 

OFCCP investigates for violations of the Executive Order through compliance 

evaluations or in response to complaints. If a violation is found, OFCCP may ask the 

federal contractor or subcontractor to enter into conciliation negotiations. If conciliation 

efforts fail, OFCCP may, through its attorneys: (1) initiate an administrative enforcement 

proceeding by filing an administrative complaint against the contractor, or (2) refer 

the matter to the Department of Justice for action by the Attorney General. 

If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days 

to request a review by an Administrative Law Judge (ALJ), who hears the case and 

recommends a decision. If the contractor or subcontractor is dissatisfied with the 

ALJ’s decision, it may appeal the decision to the Department of Labor’s Administrative 

Review Board. The Board issues the final decision, whether or not there is an appeal. 

93 
If the Board finds that the contractor or subcontractor has violated the Executive 

Order, it may order the contractor or subcontractor to provide appropriate relief, 

which may include restoration of back pay and employment status and benefits for 

the victim(s) of discrimination. Depending on the circumstances, violations also may 

result in cancellation, suspension, or termination of contracts, withholding of progress 

payments, debarment, and/or other sanctions. 

If the contractor or subcontractor is dissatisfied with the Board’s decision, it may 

appeal that decision to the federal courts. 

Relation to State, Local, and Other Federal Laws 

OFCCP generally refers individual complaints alleging discrimination based on 

race, color, religion, sex, or national origin to the Equal Employment Opportunity 

Commission (www.eeoc.gov) for investigation and resolution. 

The Executive Order and its implementing regulations apply only to the specific state 

or local government entities that participate in work on or under a federal contract or 

subcontract. This coverage is narrower than that which applies to private sector 

employers. 

94 
Employment Discrimination in 

Construction Contracts 

Executive Order 11246, as amended 

(Parts II, III, and IV) (41 CFR Chapter 60, 

Parts 60-1, 60-3, 60-4, 60-20 and 60-50) 

Who is Covered 

Executive Order 11246 and its implementing regulations cover employers with 

federal contracts or subcontracts that exceed $10,000, or that will (or can reasonably 

be expected to) accumulate to more than $10,000 in any 12-month period. 

Covered contracts may be for the purchase, sale, or use of personal property, 

nonpersonal services, or both. In this context, the term “nonpersonal services” 

includes services such as construction. Agreements where the parties stand in 

the relationship of employer and employee are not covered. 

In addition, the Executive Order and the regulations cover contractors and 

subcontractors who hold any federally assisted construction contract in excess of 

$10,000. Under Section III of the Executive Order, in all contracts for construction 

to be financed wholly or partially by federal financial assistance, all applicants for 

federal financial assistance must include a specific clause notifying the construction 

contractor that it is covered by the Executive Order. All applicants must also agree 

to cooperate with the Secretary of Labor in enforcing the Order. 

The following types of contracts and subcontracts are exempt from the Executive 

Order: 

■ Those not exceeding $10,000; 

■ Those for indefinite quantities, unless the purchaser has reason to believe that 

the cost in any one year will be over $10,000; and 

■ Those for work that is performed outside the U.S. by employees who were not 

recruited in the U.S. 

Specific exemptions may apply to the following: 

■ Contracts and subcontracts with certain religiously-oriented educational institutions; 

■ Contracts and subcontracts for work on or near Indian reservations; 

■ Contracts and subcontracts involving national security, if the head of the contracting 

agency determines both that (1) the contract is essential to national security, and 

(2) noncompliance with a particular requirement of the Executive Order or the

regulations with respect to the process of awarding the contract is essential to

national security;

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

95 
■ Specific contracts or subcontracts, if the Deputy Assistant Secretary decides 

that special circumstances in the national interest require such an exemption; 

■ Contractor facilities not related to contract performance, as determined by the 

Office of Federal Contract Compliance Programs (OFCCP) within the Department 

of Labor’s Employment Standard Administration; and 

■ Contracts or subcontracts with state or local governments, except for the 

specific government entity that participates in work on or under the contract. 

Moreover, contractors or subcontractors that are religious entities may grant 

employment preferences to individuals of a particular religion to perform work 

connected with carrying out the activities of the religious entity. 

Basic Provisions/Requirements 

The Executive Order and the regulations require covered contractors and 

subcontractors to refrain from discrimination and take affirmative steps to ensure 

that applicants and employees receive equal employment opportunity regardless 

of race, color, religion, sex, and/or national origin. 

Covered contractors and subcontractors must make good faith efforts to achieve 

goals set by OFCCP for the employment of women and minorities in all crafts and 

trades in their area. These contractors and subcontractors must pursue such goals 

on all their construction work, whether or not federal or federally assisted. They must 

also include a specific equal opportunity clause in each of their nonexempt contracts 

and subcontracts. The Order and the regulations provide the required language 

(www.dol.gov/esa/regs/statutes/ofccp/eo11246.htm) for this clause. 

Although they are not required to create written affirmative action programs (AAPs), 

construction contractors and subcontractors must follow the regulations that require 

federal and federally assisted construction contractors and subcontractors to take 

specific affirmative steps to ensure equal employment opportunity. Contractors and 

subcontractors must also fully document their affirmative action efforts. 

All construction contractors and subcontractors, whether or not federally assisted, 

are prohibited from discrimination based on race, color, religion, sex, and national 

origin in such employment practices as recruitment, rates of pay, hours, upgrading, 

layoff, promotion, selection for training, advertising efforts, job classifications, 

seniority, retirement ages, or job fringe benefits such as employer contributions 

to company pension or insurance plans. Sexual harassment is also a violation of 

the nondiscrimination provisions of the Executive Order. 

The regulations also include other specific requirements, such as those summarized 

below. 

■ Covered contractors and subcontractors, regardless of company size, are barred 

from using exclusionary policies that treat men and women differently. For example, 

a contractor or subcontractor that hires or promotes a man who has young children 

cannot deny a job or a promotion to a woman because she has young children. 

■ Covered contractors and subcontractors also may not depend on state “protective” 

laws to deny employment to qualified female applicants. Such “protective” laws 

include those prohibiting women from performing certain types of occupations, 

from working more than a certain number of hours, or from lifting more than a 

certain amount of weight. 

96 
■ Covered contractors and subcontractors that qualify as “employers” under Title VII of 

the Civil Rights Act of 1964 are required to comply with the Pregnancy Discrimination 

Act of 1978. Additional information on this law may be found on the Equal Employment 

Opportunity Commission’s Facts About Pregnancy Discrimination Web page at 

www.eeoc.gov/facts/fs-preg.html. Such employers must also provide equal fringe 

benefits, and make equal contributions for such benefits, for men and women. 

■ Covered contractors and subcontractors are required to take all necessary actions 

to ensure that no one attempts to intimidate or discriminate against an individual 

for filing a complaint or participating in a proceeding under the Executive Order. 

Employee Rights 

Anyone has the right to file a complaint with OFCCP if he or she believes that a federal 

contractor or subcontractor has discriminated on the basis of race, color, religion, 

sex, or national origin. In most cases, complaints must be filed within 180 days of 

the discriminatory action. Anyone may call OFCCP with a question about interpreting 

the regulations, filing a complaint, or any other related matter. 

The main telephone numbers for OFCCP’s national offices are 202–693–0101 and 

202–693–1308 (TTY). Additional telephone numbers for OFCCP may be found at 

OFCCP’s Office Contact Web page (www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm). 

Compliance Assistance Available 

More detailed compliance assistance information, including copies of explanatory 

brochures and regulatory and interpretative materials, may be obtained from the 

OFCCP Web site (www.dol.gov/esa/ofccp/) or by contacting OFCCP’s local offices 

(www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm). Further assistance is available 

from OFCCP’s Toll-Free Help Desk at 1–800–397–6251. 

Penalties/Sanctions 

OFCCP investigates for violations of the Executive Order either through compliance 

evaluations or in response to complaints. If a violation is found, OFCCP may ask the 

contractor or subcontractor to enter into conciliation negotiations. If conciliation 

efforts fail, OFCCP may: (1) initiate an administrative enforcement proceeding by 

filing an administrative complaint against the contractor, or (2) refer the matter to 

the Department of Justice for action by the Attorney General. 

If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days 

to request a review by an Administrative Law Judge (ALJ), who hears the case and 

recommends a decision. If the contractor or subcontractor is dissatisfied with the 

ALJ’s decision, it may appeal the decision to the Department of Labor’s Administrative 

Review Board. The Board issues the final decision, whether or not there is an appeal. 

If the Board finds that the contractor or subcontractor has violated the Executive 

Order, it may order the contractor or subcontractor to provide appropriate relief, 

which may include restoration of back pay and employment status and benefits for 

the victim(s) of discrimination. Depending on the circumstances, violations also may 

result in cancellation, suspension, or termination of contracts, withholding of progress 

payments, and debarment. 

If the contractor or subcontractor is dissatisfied with the Board’s decision, it may 

appeal that decision to the federal courts. 

97 
Relation to State, Local, and Other Federal Laws 

OFCCP generally refers individual complaints alleging discrimination based on 

race, color, religion, sex, or national origin to the Equal Employment Opportunity 

Commission (www.eeoc.gov). 

The Executive Order and its implementing regulations apply only to the specific 

state or local government entities that participate in work on or under a federal 

contract or subcontract. This coverage is narrower than that which applies to 

employers in the private sector. 

98 
Equal Opportunity for 

Individuals with Disabilities 

Rehabilitation Act of 1973, as amended 

(29 USC §793; P.L. 93-112, Section 503; 

41 CFR Chapter 60, Parts 60-741 to 60-742) 

Who is Covered 

Section 503 of the Rehabilitation Act of 1973, as amended, requires employers with 

federal contracts or subcontracts that exceed $10,000, and contracts or subcontracts 

for indefinite quantities (unless the purchaser has reason to believe that the cost in 

any one year will not exceed $10,000), to take affirmative steps to hire, retain, and 

promote qualified individuals with disabilities. The regulations implementing Section 

503 make clear that this obligation to take affirmative steps includes the duty to refrain 

from discrimination in employment against qualified individuals with disabilities. 

The following types of contracts and subcontracts are exempt from Section 503: 

■ Those not exceeding $10,000; 

■ Those for work that is performed outside the U.S.; and 

■ Those with state or local governments, except for the specific government 

entity that participates in work on or under the contract. 

The Deputy Assistant Secretary may grant a waiver from the requirements of 

Section 503 in the following circumstances: 

■ For specific contracts, subcontracts, or purchase orders, if special circumstances 

in the national interest require such an exemption; 

■ For facilities not connected to performance of the federal contract, upon the 

written request of the contractor, if certain conditions listed in the regulations are 

met. This type of waiver will terminate, at the very latest, two years after the date 

on which the waiver is granted, and earlier under certain specific circumstances; 

and 

■ Contracts and subcontracts involving national security, if the head of the 

contracting agency determines both that (1) the contract is essential to national 

security, and (2) noncompliance with a particular requirement of the Executive 

Order or the regulations with respect to the process of awarding the contract is 

essential to national security. 

Under Section 503 and its implementing regulations, an “individual with a disability” 

means a person who (1) has a physical or mental impairment that substantially 

limits one or more major life activities, (2) has a record of such impairment, or 

(3) is regarded as having such an impairment.

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

99 
A “qualified individual with a disability” means a person with a disability who 

satisfies the job-related requirements of the employment position he or she holds or 

is applying for, and who, with or without reasonable accommodation, can perform 

the essential job functions of that position. 

Additional information on the definitions of “individual with a disability” and 

“qualified individual with a disability” can be found in several of the Enforcement 

Guidances published by the Equal Employment Opportunity Commission (EEOC). 

These Guidances may be found on the EEOC’s Enforcement Guidances and 

Related Documents Web page at www.eeoc.gov/policy/guidance.html. 

Basic Provisions/Requirements 

Under Section 503 and its implementing regulations, covered employers with federal 

contracts or subcontracts must take affirmative steps to employ qualified individuals 

with disabilities. This obligation covers the full range of employment and personnel 

practices, such as recruitment, hiring, rates of pay, upgrading, and selection for 

training. All covered contractors and subcontractors must also include a specific 

equal opportunity clause in each of their nonexempt contacts and subcontracts. 

The regulations provide the required language for this clause. 

In addition, Section 503 and its regulations require covered federal contractors 

and subcontractors to make reasonable accommodations for the known physical 

or mental limitations of qualified individuals with disabilities, unless providing an 

accommodation would create an undue hardship. Furthermore, covered contractors 

and subcontractors are required to take all necessary actions to ensure that no one 

attempts to intimidate or discriminate against any individual for filing a complaint or 

participating in a proceeding under Section 503. 

Under Section 503, each employer that has both (1) a federal contract or 

subcontract of $50,000 or more, and (2) 50 or more employees, must prepare, 

implement, and maintain a written affirmative action program covering each of its 

establishments. The employer must review and update the program annually and 

must make it available for inspection by any employee or applicant for employment, 

as well as by the Office of Federal Contract Compliance Programs (OFCCP) within 

the Department of Labor’s Employment Standards Administration. The program may 

be integrated with, or kept separate from, any other affirmative action program the 

employer is required to prepare. 

Employee Rights 

Employees of and applicants for employment with a covered contractor or 

subcontractor have the right to file a complaint with OFCCP if they believe that a 

federal contractor or subcontractor has discriminated against them on the basis 

of a disability. Anyone may call OFCCP with a question about interpreting the 

regulations, filing a complaint, or any other related matter. The main telephone 

numbers for OFCCP’s national offices are 202–693–0101 and 202–693–1308 (TTY). 

Additional telephone numbers are located on OFCCP’s Office Contact Web page at 

www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm. 

Compliance Assistance Available 

More detailed compliance assistance information, including copies of explanatory 

brochures and regulatory and interpretative materials, may be obtained from the 

100 
OFCCP Web site (www.dol.gov/esa/ofccp/) or by contacting OFCCP’s local offices 

(www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm). Further assistance is available 

from OFCCP’s Toll-Free Help Desk at 1–800–397–6251. 

Penalties/Sanctions 

OFCCP investigates for violations of Section 503 either through compliance 

evaluations or in response to complaints. If a violation is found, OFCCP may ask 

the federal contractor or subcontractor to enter into conciliation negotiations. 

If conciliation efforts fail, OFCCP may initiate an administrative enforcement 

proceeding by issuing an administrative complaint against the contractor or 

subcontractor. 

If OFCCP files an administrative complaint, the contractor or subcontractor has 

20 days to request a review by an Administrative Law Judge (ALJ), who hears the 

case and recommends a decision. If the contractor or subcontractor is dissatisfied 

with the ALJ’s decision, it may appeal the decision to the Department of Labor’s 

Administrative Review Board. The Board issues the final decision, whether or not 

there is an appeal. 

If the Board finds that a violation of Section 503 has occurred, it may order the 

contractor or subcontractor to provide appropriate relief, which may include 

back pay and benefits, and restoration of employment status, for the victim(s) of 

discrimination. Depending on the circumstances, violations also may result in 

cancellation, suspension, or termination of contracts, withholding of progress 

payments, and debarment. 

If the contractor or subcontractor is dissatisfied with the Board’s decision, it may 

appeal that decision to the federal courts. 

Relation to State, Local, and Other Federal Laws 

Section 503 and its implementing regulations apply only to the specific state or 

local government entities that participate in work on or under a federal contract 

or subcontract. This coverage is narrower than that which applies to employers in 

the private sector. 

Section 107(b) of the Americans With Disabilities Act of 1990 (ADA) required 

agencies with enforcement responsibilities under the Rehabilitation Act of 1973 

(e.g., OFCCP) and under Title I of the ADA (i.e., the Equal Employment Opportunity 

Commission) to develop procedural regulations to ensure that complaints filed under 

these laws are addressed in a manner that avoids duplication of effort and prevents 

application of inconsistent or conflicting standards for the same requirements under 

the two laws. These regulations are found at 41 CFR Part 60-742. 

101 
Employment Discrimination and 

Equal Opportunity for Certain 

Veterans Who Served on Active Duty 

and Special Disabled Veterans 

Vietnam Era Veterans’ Readjustment Assistance 

Act of 1974 (VEVRAA), as amended; Veterans 

Employment Opportunities Act of 1998 (VEOA); 

Veterans Benefits and Health Care Improvement 

Act of 2000 (VBHCIA); and Jobs for Veterans Act 

of 2002 ( JVA) (38 USC §4212, as amended; 

41 CFR Chapter 60, Part 60-250) 

Who is Covered 

Title 38 of the U.S. Code, Section 4212 generally covers employers with federal 

contracts or subcontracts that meet the threshold amount specified in the statute. 

The date on which the employer entered its federal contract is a key factor in 

determining whether or not the contract is covered under Section 4212. In the case 

of federal contracts and subcontracts entered into before December 1, 2003, the 

employer is covered under Section 4212 if the amount of the federal contract or 

subcontract is $25,000 or more. In the case of federal contracts or subcontracts 

entered into on or after December 1, 2003, the employer is covered under Section 

4212 if the federal contract or subcontract is in the amount of $100,000 or more. 

Contracts covered by Section 4212 and its implementing regulations may be for the 

purchase, sale, or use of personal property, nonpersonal services, or both. In this 

context, the term “nonpersonal services” includes services such as construction. 

Agreements in which the parties stand in the relationship of employer and employee 

are not covered. 

The following types of contracts and subcontracts, entered into before 

December 1, 2003, are not covered under Section 4212: 

■ Those for less than $25,000; 

■ Those for indefinite quantities, unless the purchaser has reason to believe 

that the cost in any one year will be $25,000 or more; 

■ Those for work that is performed outside the U.S.; and 

■ Those with state or local governments, except for the specific government entity 

that participates in work on or under the contract. 

The Employment Law Guide is offered as a public resource. It does not create new legal obligations and it 

is not a substitute for the U.S. Code, Federal Register, and Code of Federal Regulations as the official sources 

of applicable law. Every effort has been made to ensure that the information provided is complete and 

accurate as of the time of publication, and this will continue. Later versions of this Guide will be offered at 

www.dol.gov/compliance or by calling our Toll-Free Help Line at 1–866– 4–USA–DOL (1–866– 487–2365). 

102 
The following types of contracts and subcontracts, entered into on or after 

December 1, 2003, are not covered under Section 4212: 

■ Those for less than $100,000; 

■ Those for indefinite quantities, unless the purchaser has reason to believe that 

the cost in any one year will be $100,000 or more; 

■ Those for work that is performed outside the U.S.; and 

■ Those with state or local governments, except for the specific government 

entity that participates in work on or under the contract. 

The Deputy Assistant Secretary may grant a waiver from the requirements of 

Section 4212 in the following circumstances: 

■ For specific contracts, subcontracts, or purchase orders, if special circumstances 

in the national interest require such an exemption; 

■ For facilities not related to performance of the contract, as determined by the 

Deputy Assistant Secretary upon written request by the contractor; and 

■ Contracts and subcontracts involving national security, if the head of the 

contracting agency determines both that (1) the contract is essential to national 

security, and (2) noncompliance with a particular requirement of Section 4212 

or the regulations with respect to the process of awarding the contract is essential 

to national security. 

Until Congress passed the Veterans Employment Opportunities Act of 1998 (VEOA), 

Section 4212 applied to contractors and subcontractors with contracts of more than 

$10,000. In addition, only “special disabled veterans” and “veterans of the Vietnam 

era” were protected under the section. 

In the VEOA, Congress raised the minimum contract amount to $25,000 and 

expanded the application of Section 4212 to include other protected veterans. 

In the Veterans Benefits and Health Care Improvement Act (VBHCIA), Congress added 

recently separated veterans to those groups of veterans protected under VEVRAA. 

In the Jobs for Veterans Act (JVA), Congress raised the minimum contract amount 

to $100,000 and changed the categories of veterans that are covered under 

Section 4212. In addition, the JVA changed the manner in which federal contractors 

are to comply with the requirement to list job openings with the state employment 

security agency. 

The JVA amendments to VEVRAA apply only to federal contracts and subcontracts 

entered on or after December 1, 2003. The regulations implementing Section 4212, 

found at 41 CFR Part 60-250, will be updated to reflect these changes. The changes 

in the contract coverage thresholds and the categories of covered veterans were 

made by statutory amendments, however, and are in effect even though the 

regulations have not yet been amended. As discussed below, the changes to the 

mandatory job-listing requirement will take effect when the Department of Labor 

(DOL) issues final regulations implementing the JVA amendments. 

Definitions 

Under Section 4212, a “veteran of the Vietnam era” means a veteran of the U.S. 

military, ground, naval, or air service, any part of whose service was during the period 

August 5, 1964 through May 7, 1975, who (1) served on active duty for a period of 

more than 180 days and was discharged or released with other than a dishonorable 

103 
discharge, or (2) was discharged or released from active duty because of a 

service-connected disability. “Vietnam era veteran” also includes any veteran of 

the U.S. military, ground, naval, or air service who served in the Republic of Vietnam 

between February 28, 1961 and May 7, 1975. 

NOTE: JVA eliminated Vietnam era veterans as a protected category under 

VEVRAA. However, most Vietnam era veterans will continue to be protected 

under other categories. 

A “special disabled veteran” means a veteran who served on active duty in the U.S. 

military ground, naval, or air service and (1) who was discharged or released from 

active duty because of a service-connected disability, or (2) who is entitled to 

compensation (or who but for the receipt of military retired pay would be entitled to 

compensation) for certain disabilities under laws administered by the Department of 

Veterans Affairs (i.e., disabilities rated at 30 percent or more, or at 10 or 20 percent if 

the veteran has been determined to have a serious employment handicap). 

A “disabled veteran” means a veteran who served on active duty in the U.S. military 

ground, naval, or air service: (1) is entitled to disability compensation (or who but 

for the receipt of military retired pay would be entitled to disability compensation) 

under laws administered by the Secretary of Veterans Affairs, or (2) was discharged 

or released from active duty because of a service-connected disability. 

A “recently separated veteran,” with respect to federal contracts and subcontracts 

entered into before December 1, 2003, means any veteran who served on active 

duty in the U.S. military ground, naval, or air service during the one-year period 

beginning on the date of such veteran’s discharge or release from active duty. 

With respect to federal contracts and subcontracts entered into on or after 

December 1, 2003, “recently separated veterans” means any veteran who served 

on active duty during the three-year period beginning on the date of such 

veteran’s discharge or release from active duty. 

An “other protected veteran” means any other veteran who served on active duty 

in the U.S. military ground, naval, or air service during a war or in a campaign or 

expedition for which a campaign badge has been authorized, other than a special 

disabled veteran, veteran of the Vietnam era, or recently separated veteran. 

An “Armed Forces service medal veteran” means a veteran who, while serving 

on active duty in the U.S. military ground, naval, or air service, participated in a 

United States military operation for which an Armed Forces service medal was 

awarded pursuant to Executive Order 12985 (61 Fed. Reg. 1209). 

Basic Provisions/Requirements 

For contracts entered into before December 1, 2003: 

Section 4212 requires covered contractors and subcontractors to take affirmative 

steps to employ qualified Vietnam era veterans, special disabled veterans, recently 

separated veterans (1 year), and other protected veterans. This obligation covers 

the full range of employment and personnel practices, such as recruitment, hiring, 

rates of pay, upgrading, and selection for training. As part of this obligation, 

contractors with a federal contract or subcontract of $25,000 or more that was 

entered into before December 1, 2003, must list most job openings with the 

local office of the State Employment Service or with DOL’s America’s Job Bank 

(www.ajb.org). The State Employment Service must give veterans’ priority when 

making referrals for job openings. 

104 
In addition to raising the contract coverage threshold, the JVA amended Section 4212 

by changing the categories of veterans covered under the law, and the manner in 

which the mandatory job-listing requirement is to be implemented. 

For contracts entered into on or after December 1, 2003: 

Section 4212 requires covered contractors and subcontractors to take affirmative 

steps to employ qualified disabled veterans, recently separated veterans (3 years), 

Armed Forces Service Medal veterans, and other protected veterans. Under the 

JVA, contractors with a federal contract or subcontract of $100,000 or more that was 

entered into on or after December 1, 2003, are required to list their job openings 

with an appropriate employment service delivery system. In addition to listing their 

employment openings with an appropriate employment service delivery system, the 

JVA provides that contractors may list their employment openings with a one-stop 

career center, other appropriate service delivery points, or America’s Job Bank. 

New regulations are needed to implement the changes in the mandatory job-listing 

requirement, and are currently under development. Until the final regulations 

implementing the JVA amendments go into effect, contractors may continue to 

fulfill their job listing requirements by using either their local employment service 

office or America’s Job Bank. 

Contractors who have contracts that were entered into both before, and on 

or after December 1, 2003, are covered by both sets of requirements. 

For all covered contractors: 

The regulations implementing Section 4212 include the obligation to refrain from 

discrimination in employment against protected veterans. The regulations also require 

all covered contractors and subcontractors to include a specific equal opportunity 

clause in each of their nonexempt contracts and subcontracts. The regulations 

provide the required language for this clause at 41 CFR 60-250.5; to view the 

regulations visit www.dol.gov/dol/allcfr/ESA/Title_41/Part_60-250/41CFR60-250.5.htm. 

Covered contractors and subcontractors are also required to make reasonable 

accommodations for the known physical or mental limitations of qualified individuals 

with disabilities, unless providing an accommodation would create an undue 

hardship. In addition, covered contractors and subcontractors are required to take 

all necessary actions to ensure that no one attempts to intimidate or discriminate 

against any individual for filing a complaint or participating in a proceeding under 

Section 4212. 

For contracts entered into before December 1, 2003, under Section 4212, each 

employer that has both (1) a federal contract or subcontract of $50,000 or more 

and (2) 50 or more employees must prepare, implement, and maintain a written 

affirmative action program (AAP) covering each of its establishments. The employer 

must review and update the program annually, and it must be available for inspection 

by any employee or applicant for employment, as well as by the Office of Federal 

Contract Compliance Programs (OFCCP) within the Department of Labor’s Employment 

Standards Administration. The program may be integrated with, or kept separate 

from, any other affirmative action program the employer is required to prepare. 

As a result of the JVA amendments, for contracts entered on or after December 1, 

2003, the threshold for AAP coverage is a contract of $100,000 or more. 

Therefore, under Section 4212, each employer that has both (1) a federal contract 

or subcontract of $100,000 or more and (2) 50 or more employees must prepare, 

implement, and maintain a written AAP covering each of its establishments. 

105 
Employee Rights 

Employees and applicants for employment with a covered contractor or 

subcontractor have the right to file a complaint with OFCCP if they believe that the 

contractor or subcontractor has discriminated against them on the basis of veteran’s 

status. Such complaints may be filed online at OFCCP’s How to File a Compliant 

Web page (www.dol.gov/esa/regs/compliance/ofccp/pdf/pdfstart.htm). 

Anyone may call OFCCP with a question about interpreting the regulations, filing 

a complaint, or any other related matter. The main telephone numbers for 

OFCCP’s national offices are 202–693–0101 and 202–693–1337 (TTY). Additional 

telephone numbers may be found at on OFCCP’s Office Contact Web page 

(www.dol.gov/esa/contacts/ofccp/ofcpkeyp.htm). 

Compliance Assistance Available 

If you need more information pertaining to OFCCP or any other issue related to 

federal contractors’ equal employment opportunity and affirmative action obligations, 

you can: 

■ Visit OFCCP’s Web site (www.dol.gov/esa/ofccp/index.htm); 

■ Call OFCCP’s Toll-Free Help Desk at 1–800–397–6251; or 

■ Contact an OFCCP District or Area office in your local area (www.dol.gov/esa/ 

contacts/ofccp/ofnation2.htm). 

Penalties/Sanctions 

OFCCP investigates for violations of the Act either through compliance evaluations 

or in response to complaints. If a violation is found, OFCCP may ask the federal 

contractor or subcontractor to enter into conciliation negotiations. If conciliation 

efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing 

an administrative complaint against the contractor or subcontractor. 

If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days 

to request a review by an Administrative Law Judge (ALJ), who hears the case and 

recommends a decision. DOL’s Administrative Review Board issues final decisions. 

If the contractor or subcontractor is dissatisfied with the ALJ’s decision, it may appeal 

the decision to the Board. 

If the Board finds that the contractor or subcontractor has violated Section 4212, it 

may order the contractor or subcontractor to provide appropriate relief, which may 

include restoration of back pay and employment status and benefits for the victim(s) 

of discrimination. Depending upon the circumstances, violations also may result 

in cancellation, suspension, or termination of contracts, withholding of progress 

payments, and debarment. 

Relation to State, Local, and Other Federal Laws 

Section 4212 and its implementing regulations apply only to the specific state or 

local government entities that participate in work on or under a federal contract 

or subcontract. The coverage is narrower than that which applies to employers 

in the private sector. 

106 
107
108