Service Contract Labor Standards, formerly known as The Service Contract Act of 1965 (SCA), sets minimum wage and fringe benefit standards for workers covered by the act. The SCA, which outlines various operational requirements for service contracts over $2,500, can be a compliance nightmare for government contractors caught unaware.
The SCA’s core requirement is that contractors and subcontractors performing services on prime contracts involving more than $2,500 pay service employees no less than the wage rates and fringe benefits prevailing in the locality, or the rates contained in a predecessor contractor’s collective bargaining agreement. Determining what these rates are and who they apply to can be confusing to say the least.
Violating the SCA carries stiff penalties. The SCA provides authority for the government to withhold contract funds to reimburse underpaid employees, terminate the contract, hold the contractor liable for associated costs to the government, and debar the contractor and its principal managers and employees from future government contracts for a period of three years.
A participant who completes the webinar will:
-Learn when the SCA applies to contracts.
-Understand what employees are covered.
-Explore how the SCA can impact pricing.
-Understand what benefits satisfy health and welfare requirements
-Learn how to implement SCA compliance programs.
-Discuss impacts of labor-related Executive Orders, including Fair Pay and Safe -Workplaces
-And more!
A full recording of this presentation can found here: http://www.aronsonllc.com/knowledge-center/resources/item/service-contract-labor-standards-basics-and-pricing-implications
If you have employees performing OCONUS, not SCA-covered
How do you determine is SCA applies to an RFP you’re interested in or to a contract you already have?
-You’ll want to look for one of these two clauses in your contract (state clauses)
-If its a contract you’ve already won, hopefully you’re already aware that its SCA covered. A lot of contractors learn that their contract is SCA-covered well after contract award. It important you know during the RFP stage because there are high pricing implications as a result of SCA coverage that Hope is going to discuss a bit later on.
Another tell tale sign that a contract is SCA-covered is the inclusion of the area wage determination. The WD can be included in two ways…
-The first is that the WD can be included as an attachment in its entirety. This is the preferred method, because the WD is hard to miss when it is included this way because its at least 10 pages long. When you see one of these, you know the contract is SCA-covered.
-Another way the WD can be incorporated is if it is mentioned by reference. This way is not ideal because its barried in the RFP, and its much less obvious that its included. If its incorporated this way, then you’ll have to go to the WDOL website and pull the WD down yourself.
However the WD is included, it is important that you thoroughly review all of the requirements listed on the WD so that you are fully aware and you understand the impacts that the specific WD will have on your pricing for this piece of work.
What if it sounds like a contract should be SCA-covered, its predominantly for services, its over $2,500, and its performed within the US, but you don’t see that SCA is included when you’re looking at the RFP? Well.. In this case the Christian Doctrine applies and what this means is that any mandatory clauses that should have been included, but were inadvertently omitted, will automatically become a part of the contract. When might this come up? Say you have some new employees on the contract, that have previously worked on SCA contracts, and they ask wheres my health and welfare? They may make an inquiry to DOL. DOL will then perform an assessment. If they determine that SCA should have been incorporated into the contract, they will incorporate it retroactive to the start of the contract. If this happens, the contractor will be made whole by the Government for retroactively paying employees, but they are never truly made whole because it takes a lot of time and effort to perform the analysis to determine which employees are SCA covered, how many hours did they work and how much they are owed. That is a lot of time that won’t be recovered. This is why its important at the RFP stage, to ask the question is this contract SCA covered, so you know and you can be compliant from the very start of the contract.
Proposed rule to amend FLSA salary basis – significant increase from $455 to $970, comment period ended on Sept 4 then final rule will be posted
Others does not apply to – Teachers: primary duty of teaching/instruction/work for educational institution
Creative Professionals: Salaried $455 week, primary duty is the performance of work requiring imagination, invention or originality in a recognized field of artistic or creative endeavor
Outside Salespeople: primary duty is making sales or obtaining orders or contracts for services or for the use of facilities which a consideration will be paid by the client or customer; customarily engaged away from employer’s place of business
DOL currently reviewing nearly 300,000 comments on proposed rule
What is an Area Wage Determination? A wage determination identifies a number of key elements including min wages and fringe benefits for specific job classifications.
There are more than 200 WDs across the country, and they are all geographically focused. The WD lays out..
As a rule, SCA does not allow for sick leave benefits, but your contract may incorporate WDs that are connected to collective bargaining agreements, which may have a sick leave requirement in them. So if you’ve heard of someone receiving sick leave under SCA, it is most likely because there is a collective bargaining agreement in place. An executive order (13706) was released on September 7,2015, and the proposed rule was just issued on February 25. The EO requires contractors to provide sick leave to employees on covered contracts. We’ll talk about this in more detail later on.
There are different types of WDs that we’ll go over. The most common WD is called the Area, or standard WD. These WDs are generic, and issued by locality (as a county, group of counties, or even as large as an entire state). Each WD lists over 200 worker classifications.
There are also nonstandard WDs that reflect wges in a specific industry like fast food, diving, flying airplanes and drones, that sort of the thing.
As I mentioned earlier, a CBA may be attached to a WD and incorporated into a specific contract.
You also may have contract-specific WDs which are typically for unique circumstances and have generally resulted in a sole-sourced contract. These contract-specific WDs are as the title indicates, for use in that contract only and not used outside of that said contract.
Where do these classifications or labor categories come from?
DOL maintains a directory of occupations which defines classifications and duties that are found on SCA WDs. It contains FGEs and can be found on the Library page at Wage Determinations Online or Wdol.gov. You’re most likely going to become very familiar with this handbook when you are mapping your internal labor categories to those classifications on the WD. You will do this by looking at the actual job being performed by your employee and comparing it to the job description in the directory. You can not simply map labor categories by the job title alone. It is critical to look at the job that is actually being performed. If an employee performs any portion of the job description for a specific classification, they can be mapped to that position. If DOL performs an SCA investigation, they will be looking closely at your job mappings.
Where do you get SCA WDs? For contractors, the first place to look would be in your service contract. The contracting officer must have incorporated the WD into the contract to be applicable. We frequently see where WDs are initially not fully incorporated into the contract, or a secondary location is added, so the contract should have been modified to include a new WD. A contract may incorporate more than one WD if there are multiple locations. The most important thing to determine which WD should be used is where the work is actually being performed. New work location? Have CO incorporate into contract. Important to use the WD for the actual geographic location because rates do vary across the US and you want to be compliant. Using only the WD that’s incorporated into the contract is not an excuse.
Contracting officers obtain WDs from WDOL.gov, the same website where you can find the Directory of Occupations. The site contains a menu that will allow you to input specific information about your contract to find the appropriate WD.
It will ask you about your location, where the work is being performed including the county and state. It will ask if the services were previously performed at that locality under an SCA-Covered contract. And it will ask you if the contract services to be performed are non-standard services, and then your wage determination should pop up.
Earlier I mentioned non-standard WDs. A lot of these are nationwide, but I have seem some that have been narrowed down by state. These WDs are found by service type. So when you’re going through the menu on WDOL.gov, you are going to click yes when it asks you if you’re performing a non-standard services, and from the drop-down, you will select a non-standard service. A few examples you will see are debt collection services or baggage inspection services.
There are two different types of standard WDs, odd and even-numbered. Both WDs have the same…
But each WD type calculates the HW distribution differently. Its important that you pay attention to the last two digits of the WD, that will tell you if its odd or even.
You can tell that a contract is odd-numbered or not by looking at the last two digits in the WD number, like this example shows. Odd WDs require you to pay the listed hourly health and welfare rate, for all hours paid each week, up to a maximum of 40 hours per week. They require the calculation of the HW distribution to be on an individual basis, by employee. Remember this is PAID time. Including work time and paid leave time. This is referred to as a fixed cost and it is most frequently used on contracts. This can get pretty complicated because you have to measure the cost of benefits for each individual employee and compare that cost to the SCA HW requirement.
Now we typically don’t cover even numbered WDs in our presentations, but recently Hope and I have come across several even WDs with our clients, when I know Hope had gone at least 10 years without seeing one. So its important we cover it.
Even-numbered WDs use an average HW calculation across the contract, so you will be compliant with SCA as long as the average HW benefit taken by your SCA employees is at the stated hourly amount. You’ll calculate this average by taking the total cost of benefits taken by covered employees over all hours worked, including overtime. This is different from the odd WD calculation, that only requires HW on hours paid capped at 40 hours a week. The even numbered WDs are now for the most part a thing of the past, the only time you will see these today is on very old contracts or contracts that have been recompeted and continue to use the even-numbered WD for consistency purposes. These calculations are very different, so be sure to pay attention to the WD number.
DOL issued a memorandum in December of 2015, outlining some important changes coming to WDs. There hasn’t been an increase to minimum wages for a number of years because DOL did not have a standard upon which to base regular wage increases. Old standard was the Locality Pay Survey (LPS) portion of the National Compensation Survey published by the Bureau of Labor Statistics (BLS). This survey went away in 2011. Along with that survey, a secondary source was used to determine wage increases and that was the Occupational Employment Statistics (OES) survey. The OES survey has now become the primary source for wage increases. It produces wage data annually for over 800 occupations in approximately 577 localities, which represents a significantly larger number of localities than the previously used LPS survey. The OES survey also generates separate wage data for metropolitan statistical areas (MSA) and non-metropolitans statistical areas (NMSA).
DOL has started publishing area-wide SCA WDs based on the OES survey. Transitioning to this new methodology will affect SCA WDs in two significant ways. First, DOL will begin to issue locality-based wage determinations based on the OES survey's geographic areas. As a result, the number of area-wide SCA WDs published by DOLD will increase in part because the OES survey provides wage data for substantially more geographic areas than the LPS survey did. Utilizing the OES survey as the primary data source for SCA WDs will therefore enable DOL to publish WDs that generally cover smaller geographic areas. DOL anticipates that it will make corresponding changes to the geographic scope of its WDs, and publish approximately 858 WDs as it transitions from the LPS to OES-based wage determinations. DOL expects this number to decrease once the transition to OES-based geographic areas is complete.
To help with this transition, DOL has created a crosswalk from the previously issued WDs to the new WDs. As indicated in the crosswalk, area-wide WDs issued under the prior methodology have a "2005" prefix whereas WDs issued under the revised methodology have a "2015" prefix. In the example shown here, a user searching for the area-wide SCA WD applicable to DC would find that the new wage determination for this area is 2015-4281. This crosswalk provides a tool for contractors and the government to easily locate the new WD number associated with a particulararea. DOL anticipates that it will take several months or more to issue new wage determinations for all localities, and so a new WD may not be initially available for a specific locality.
Transitioning to the OES survey as the primary wage data source for area-wide SCA WDs also affects the methodology that will be utilized to determine SCA prevailing wage rates. Because the immediate transition to OES geographic localities and wage rates could in some instances have a disruptive impact on the procurement process , DOL will implement the new methodology gradually through a transitional process that is consistent with the SCA. In particular, DOL generally does not intend to reduce wage rates on area-wide SCA WDs during its transition to the new primary data source and new geographic localities. Maintaining existing wage rates as a floor during the transitional period will provide contracting agencies, contractors, and workers with stability and predictability while DOL moves toward full implementation of the new data source. Along the same lines, DOL will cap any increases in wage rates at 10 percent per WD rate update. DOL anticipates that SCA wage rates and OES survey rates will converge over time, leading to progressively fewer instances where capping is needed.
DOL has also updated the Directory of occupations that we discussed earlier. The revised Directory includes updated occupational definitions for existing SCA classifications as well as definitions for 27 new classifications found on area-wide WDs that will be issued under DOL's new methodology.
Now lets discuss the wage and fringe benefits that are outlined in the WDs…
To start, here are some common misconceptions or assumptions that we often see companies making when they start to think about SCA compliance…
We will discuss these in more detail later on in the program, how making these assumptions can lead to detrimental mistakes when trying to comply with SCA.
Now let talks about payment of wages. The WD tells you what the minimum hourly pay rate should be. This is calculated on a fixed recurring work week basis, of 7 consecutive 24 hour work day periods. Payroll records have to be kept on this basis. Your payroll must be at least bi-weekly or semi-monthly.
As I just mentioned, when paying your employees, it is important to note that there is no distinction from a wage component between full-time, part-time, and temporary employees. They are all entitled to the same minimum wage at the specified classification if they are working on SCA-covered contracts.
So now when we start looking at fringe benefits that are referred to in the WD, you will find vacation... which is defined as a number of weeks per year and holidays, which are stated as a number of days per year. Holidays are not the same on every WD, there are generally 10 days, but there are some WDs for certain localities that actually incorporate additional holidays. I’ve found WDs that incorporate an extra holiday for Good Friday, typically those are in the northeastern states. So you do have to be careful to check this, and not make an assumption that there are always 10 holidays.
The WD also states what the HW benefit is, stated as an hourly amount, average or by employee, issued nationwide- all states excluding Hawaii. This is because of the Hawaii Prepaid Healthcare Act, which mandates that employers in Hawaii provide medical benefits, so there is a reduced HW amount for Hawaiian WDs. WDs are revised annually around June or July. This past year, we saw a significant increase in the HW amount due to the Affordable Care Act. We anticipate another significant increase this year for the same reason.
The way vacation works is, on days 1-364, the employee is entitled to zero vacation. On day 365 (the employee’s anniversary date) they would be entitled to two weeks of vacation typically, but it can very by contract. It applies to employees that are working in any capacity (part/full/tempt) if they meet the anniversary guidelines. Now, the anniversary date is important to understand because SCA contracts often change hands as far as the contractor that actually owns the contract. You frequently have a work location where there has been the same people working on the same job for 20 years… who have worked with 4 different contractors because every 5 years the contract changes hands. To protect those employees, the anniversary date that applies to the vesting of vacation benefits applies to the earlier of- the date of hire with your company or the date they started performing work in that location for similar services.
So if you’re bidding on a job and the people have been working on the contract for 15 years, you need to make sure you’re taking into account when you’re doing your pricing to ensure your employees receive the vacation they are entitled to and to ensure that you’re not losing money by paying the correct amount of vacation under SCA. That’s a big pricing mistake that can occur when contractors fail to take into account the vacation time these service employees are entitled to. We know its difficult to get the list of employee hire dates from predecessor contractors, but you really want to be proactive and try to get this list to ensure you bid accordingly.
Read slides- As I mentioned before, some WDs have more holidays than others, so be sure to check what is actually incorporated into the WD.
Whats important to note here is that full-time, part-time, and temporary employees receive vacation and holiday under SCA. Employees with a regular part-time schedule will receive a pro-rated amount of vacation and holiday benefits. Employees working an irregular schedule are entitled to holiday pay proportionate to the number of hours worked in the week prior to the holiday. We’ve provided examples here to demonstrate the calculations. Part-time employees are entitled to the same hourly rate of HW ($4.27) an hour.
The 29 CFR Part 4 reference shown here is the government regulation that describes meeting the requirements for Health and welfare, so please visit that for more detail. In general, under both types of Standard WDs, you can discharge the HW requirement by providing bona fide benefits to your workers (section 4.171 clearly defines bona fide), you can discharge the HW requirements via a cash payment in lieu of benefits or a combination of the two. As I’ve mentioned, the currently hourly HW rate is 4.27.
Now please note that just because DOL revised the HW rate, that does not mean you should be adjusting your payments automatically. This goes back to one of those common misconceptions I mentioned earlier. Do not raise your employees wages until your SCA contract has been modified by the CO. Raising the rates before the contract is officially modified may cause you to lose your ability to go in and request a contract price adjustment later on. Always follow what is in your contract.
How do you make payment of HW benefits? We talked about the ability to make cash payments in lieu of benefits. This must be done on a regular pay date, and you can true-up in the following pay period. If you plan to do contributions to 401k plans or some kind of pension plan, this must be done no less often than quarterly. Excess wages may not be credited toward the minimum HW requirements, this is another common misconception. Paying more to attract employees is not considered a fringe benefit. And vice versa, HW costs in excess of the requirement do not offset the wage requirement. It is very important to remember that these are all separate components and therefore must be treated as such. Employee paychecks need to show each component separately.
-You can see that the standard employee benefits are all here – At the top we have the typical insurance types that employers provide… health, dental, life….
-Then there is sick leave paid, if not required by a CBA, WD, or EO 13706 – The sick leave must be paid out in order to count towards SCA HW, a use it or lose it policy of days accrued but not taken would not count.
-Employer contributions to 401k satisfy the HW requirement, but it is important to note that only the vested portion of the contribution counts.
-Paid vacation or holiday in excess of the WD requirement also counts, but just like sick leave, only the vacation paid not the vacation accrued counts. Use it or lose it will not work.
-Jury duty, military and other paid leave types provided in excess of that required by law satisfy the requirement
-and lastly, of course if you are not offering benefits, cash paid satisfies the HW requirement as well.
We’re going to talk about EO 13706 regarding sick leave shortly.
Not every fringe benefit pool satisfies the SCA HW requirement
-Statutory payments like payroll taxes and workers compensation are not eligible and any other benefits that are provided for the benefit or convenience of the company do not count. These include relocation, incentive awards, tools…
-Another example of a benefit we’ve seen that is not eligible is shift premiums, as these are provided for the benefit of the company.
So as I mentioned earlier, a contract may incorporate a CBA-based WD. You do not necessarily have to follow the fringe benefit requirements in the CBA, as long as equivalent benefits are provided. And just like in standard WDs, cash-in-lieu of benefit payments may be used to offset the fringe benefits due.
Now that we’ve discussed the four components of WDs and methods to discharge HW benefits, you’re probably starting to see how compliance can get really complicated. So now Hope is going to discuss contract compliance with you.
An effective way to measure your compliance is by using an excel spreadsheet that tracks actual wages and benefits in comparison to the SCA WD requirements.
-The four factors of SCA compliance are wages, HW, holi, and vaca – each component must be measured individually by employee
-There are many factors that can complicate tracking compliance such as: Employees with multiple pay rates / positions / benefits costs during the year as well as OCONUS deployments not subject to SCA (deployed hours will need to be backed out of your calculation)
-I can tell you from personal experience that these spreadsheets can and most likely will become incredibly large and complex as every element of measuring compliance will add more columns to your spreadsheet.
Now Hope is going to talk about what might happen to you, if you do not comply with SCA…
Final rule published last week (Oct 2), benefits about 200,000 workers – “in connection with” – workers performing other duties necessary to the performance of a contract
You’ve most likely heard about the Fair Pay and Safe Workplaces rule proposed on May 28. Contractors bidding on procurement contracts in excess of $500,000 will be required to “represent to the best of [their] knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment” rendered against the contractor within the preceding 3-year period for violations of several labor laws including SCA.
Because of this rule, agencies are appointing a single Agency Labor Compliance Advisor or ALCA, to help COs determine responsibility of contractors. The information that contractors disclose along with the ALCA’s recommendation, will impact the CO’s responsibility determination of each contractor. Its important to note that Similar information will need to be collected from and disclosed on behalf of subcontractors of all tiers on subcontracts valued over $500,000. Collection of this data needs to be incorporated into subcontracting agreements. That’s an action item you should take now to prepare for this rule. Start updating your subcontract agreements, as well as letting your current subcontractors know that this information will need to be disclosed.
Contractors will have to disclose violations of these 14 labor laws, AND their equivalent state law violations. That is a large amount of laws! That means looking at and disclosing over 700 possible labor law violations, counting 14 laws for every state.
The reporting of these violations and the time period the reporting covers is a huge deal. Violations that occurred in the last 3 years, can impact your ability to do business with the government now and in the future. Violations may not necessarily prevent you from getting work, but they will certainly have an impact on the CO’s responsibility determination. If a CO doesn’t want to work with your company, this will be an easy out for them to automatically exclude you from contract award. It can lead to contract termination or the CO’s decision not to award an option extension.
You will need to update the disclosures of your violations every 6 months. As I mentioned before, information disclose may result in Government action including decision not to exercise a contract option, contract termination, or referral to the agency suspending and debarring official. Another major factor in the rule. Is that the CO will request your disclosures are input into the System for Award Management (SAM). That means this information could potentially be made public. Your competitors may eventually know about your labor law violations, and once they do, they may protest a contract that you’ve been awarded. That has big implications on your federal business going forward.
Read slides
If you haven’t been tracking labor law violations, you need to take action now to gather this information for disclosure once the rule is final. It will take a lot of time and resources to gather this data, as the scope of this rule is far reaching. I guarantee if you are not monitoring compliance, then you are not in compliance.
This requirement will apply to all tiers of subcontractors. This rule is a bit different from the other executive orders we’ve discussed, because sick leave is required for non-exempt AND exempt employees working on covered contracts. Similarly to the minimum wage rule, the coverage here includes indirect personnel performing duties necessary to support covered contracts as long as they spend more than 20% of their work hours in a given workweek performing in connection with covered contracts. This is incredibly difficult to track. Tracking on a week by week basis is a huge burden on contractors.
There are so many different components to this rule, and tracking the hours and employees is seemingly impossible. Just last week, Hope and I attended a professional Services Council meeting with prominent services contractors, and we discussed this topic alone for an hour an a half. No one knows how they are going to comply with this executive order. It is incredibly disruptive and is already causing a headache for federal contractors.
This rule can have a big impact on SCA contractors because if you’re currently providing sick leave to offset the HW requirement, you won’t be able to do this in the future. The Professional Services Council is putting together comments for this proposed rule and you’re certainly welcome to submit comments as well. The comment period has been extend to April 12, 2016.