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Basic Overview of Laws

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Based on the information you provided in response to the questions in the Advisor, the following employment laws administered by the Department of Labor (DOL) likely apply to your business or organization. Please note that the Advisor covers only the major employment laws administered by DOL. In addition, the Advisor does not identify laws administered by other federal agencies that might be applicable to your business or organization.

In addition to posters of general application, certain organizations may be required to display posters that can only be obtained from DOL's Office of Workers' Compensation Programs (OWCP). More information on these posters is available. Links to federal employment posters are always available on the Poster Page. Please note that some localities have workplace poster requirements, as do some other federal agencies such as the Department of Housing and Urban Development which requires certain businesses to post its Equal Housing Opportunity poster.

Note that Governmental retirement and health plans are not subject to Title I of ERISA.  Generally, a governmental plan means a plan established or maintained for its employees by the Government of the United States, by the government of any state or political subdivision thereof, or by any agency or instrumentality of the foregoing. A governmental plan also includes any plan to which the Railroad Retirement Act of 1935 or 1937 applies and which is financed by contributions required under that act. It also includes any plan of an international organization which is exempted from taxation under the International Organizations Immunities Act.

Federal government plans may be subject to similar provisions. For more information see U.S. Office of Personnel Management.  Nonfederal governmental plans (e.g., state and local) may be subject to provisions in the Public Health Service Act. For more information see U.S. Department of Health and Human Services (HHS).

Thank you for using the Department of Labor's FirstStep Employment Law Advisor. Please return to the beginning of this Advisor if you want to check the requirements for another establishment.


Title III, Consumer Credit Protection Act (CCPA)
(15 USC §1671 et seq.(PDF); 29 CFR Part 870)

Who is Covered

Title III of the Consumer Credit Protection Act (CCPA) is administered by the Wage and Hour Division (WHD). The 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 periodic payments from a pension or retirement program, but ordinarily does not include tips).

Basic Provisions/Requirements

Wage garnishment occurs when an employer is required to withhold the earnings of an individual for the payment of a debt in accordance with a court order or other legal or equitable procedure (e.g., Internal Revenue Service (IRS) or state tax collection). 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. The federal minimum wage is $7.25 per hour effective July 24, 2009.

Title III permits a greater amount of an employee’s wages to be garnished for child support, bankruptcy, or federal or state tax payments. Title III allows up to 50 percent of an employee's disposable earnings to be garnished for child support if the employee is supporting a current spouse or child, who is not the subject of the support order, 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.

An employee’s "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.

Title III’s restrictions on the amount of wages that can be garnished do not apply to certain 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

Title III will in most cases give 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 the garnishment of wages for any single indebtedness. The Wage and Hour Division accepts complaints of alleged Title III violations.

Notices/Posters

There are no poster, notice, recordkeeping or reporting requirements under Title III of the Consumer Credit Protection Act.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Consumer Credit Protection Act on the Compliance Assistance "By Law"(http://www.dol.gov/compliance/laws/comp-ccpa.htm) Web page.

More detailed information, including copies of explanatory brochures and regulatory and interpretative materials such as the Federal Wage Garnishment Law Fact Sheet(http://www.dol.gov/whd/regs/compliance/whdfs30.pdf), may be obtained from the Wage and Hour Division’s Web site(http://www.dol.gov/whd/) or by contacting a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm).

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.

Penalties/Sanctions

Violations of Title III may result in the 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.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


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) is administered by the Wage and Hour Division (WHD). The Act 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 CWHSSA also extends to federally assisted construction contracts subject to Davis-Bacon 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 the CWHSSA. 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
  • 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 CWHSSA 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 accepts complaints of alleged CWHSSA wage violations.

Notices/Posters

A Poster is required to be posted on all contracts to which CWHSSA applies. The notice to be posted depends on the type of federal procurement contract involved – either the Notice to all Employees Working on Federal or Federally Financed Construction Projects (PDF)(http://www.dol.gov/whd/regs/compliance/posters/fedprojc.pdf) for Davis-Bacon contracts or, for contracts to which the Service Contract Act (SCA) applies, the “Employee Rights on Government Contracts(http://www.dol.gov/whd/regs/compliance/posters/sca.htm)” must be posted.  The appropriate poster(s) must be posted at the site of the work in a prominent and accessible place where it may be easily seen by employees. There is no size requirement for these posters but they must be easily readable.

Recordkeeping

Depending on the type of federal procurement contract involved, the recordkeeping requirements of the Davis-Bacon and Related Acts or the McNamara-O'Hara Service Contract Act(http://www.dol.gov/compliance/laws/comp-sca.htm#recordkeeping) may apply to contracts subject to the CWHSSA. 

The recordkeeping requirement includes maintaining payroll records that provide the following information for each covered employee:

  • Name
  • Address
  • Social Security number
  • Correct classifications
  • Hourly rates of wages paid
  • Daily and weekly number of hours worked
  • Deductions made
  • Actual wages paid

Records must be maintained during the course of the work and for a period of three years from the completion of the contract, and be made available to the contracting agency and the Department of Labor.

Reporting

Weekly payroll statement. On contracts to which the labor standards provisions of the Davis-Bacon and Related Acts apply, each contractor and subcontractor is required to provide the federal agency a weekly statement of the wages paid to each of its employees engaged in covered work. Each payroll submitted shall be accompanied by a Statement of Compliance using page 2 of Form WH-347 Payroll (For Contractors Optional Use)(http://www.dol.gov/whd/forms/wh347instr.htm), or any form with identical wording, certifying compliance with applicable requirements. The statement is to be signed by the contractor or subcontractor, or by an authorized officer or employee of the contractor or subcontractor who supervises the payment of wages, and delivered to a representative of the federal or state agency in charge. This must be submitted within seven days after the regular pay date for the pay period.

Compliance Assistance Available

The Department of Labor provides employers, workers and others with clear and easy-to-access information and assistance on how to comply with CWHSSA. Compliance assistance related to the Act — fact sheets, and regulatory and interpretive materials — is available on the Compliance Assistance "By Law"(http://www.dol.gov/compliance/laws/comp-cwhssa.htm) Web page. Also, the “Wage Determinations OnLine(http://www.wdol.gov/) (WDOL)” Web site provides a single location for federal contracting officers to use in obtaining Davis-Bacon wage determinations for use in covered contracts, and the WDOL Web site “library” provides a variety of links that relate to compliance with the prevailing wage laws that apply to federal and federally funded and assisted contracts.

Relation to State, Local, and Other Federal Laws

The provisions of the CWHSSA 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.

Penalties/Sanctions

Contractors or subcontractors who violate the CWHSSA may be subject to fines, imprisonment, or both. Intentional violations of the CWHSSA may be punished by a fine 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 Board 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 CWHSSA 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.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


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 (DBRA) are administered by the Wage and Hour Division. These 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 Davis-Bacon 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 listed in the contract’s Davis-Bacon wage determination for corresponding classes of laborers and mechanics employed on similar projects in the area. Davis-Bacon labor standards clauses must be included in covered contracts.

Apprentices may be employed at less than predetermined rates if they are in an apprenticeship program registered with the Department of Labor or with a state apprenticeship agency recognized by the Department. Trainees may be employed at less than predetermined rates if they are in a training program certified by the Department.

Contractors and subcontractors on prime contracts in excess of $100,000 are 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(http://www.dol.gov/whd/) and respective federal contracting agencies accept complaints of alleged Davis-Bacon violations.

Notices/Posters

Every employer performing work covered by the labor standards of the DBRA must post the WH-1321 “Employee Rights Under the Davis-Bacon Act” poster(http://www.dol.gov/whd/programs/dbra/wh1321.htm) at the site of the work in a prominent and accessible place where it may be easily seen by employees.  There is no particular size requirement.  The wage determination must be similarly posted.

Recordkeeping

Under the DBRA, covered contractors must maintain payroll and basic records for all laborers and mechanics during the course of the work and for a period of three years thereafter. Records to be maintained include:

  • Name, address, and Social Security number of each employee
  • Each employee's work classifications
  • Hourly rates of pay, including rates of contributions or costs anticipated for fringe benefits or their cash equivalents
  • Daily and weekly numbers of hours worked
  • Deductions made
  • Actual wages paid
  • If applicable, detailed information regarding various fringe benefit plans and programs, including records that show that the plan or program has been communicated in writing to the laborers and mechanics affected
  • If applicable, detailed information regarding approved apprenticeship or trainee programs

Some of the records required to be kept under the law are also required under the Fair Labor Standards Act. See Wage and Hour Division Fact sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA)(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf).

Reporting

Each covered contractor and subcontractor must, on a weekly basis, provide the federal agency a copy of all payrolls providing the information listed above under “Recordkeeping” for the preceding weekly payroll period. Each payroll submitted must be accompanied by a “Statement of Compliance.” The contractor, subcontractor or the authorized officer or employee of the contractor or subcontractor who supervises the payment of wages must sign the weekly statement. Statements of Compliance are to be made on the form WH-347 "Payroll (For Contractors Optional Use)"(http://www.dol.gov/whd/forms/wh347instr.htm) or on any form with identical wording. This must be completed within seven days after the regular pay date for the pay period.

Contractors may also be asked to submit, via survey, wage data that may be used by the Wage and Hour Division to determine the locally prevailing wage rates that will apply to workers on Davis-Bacon and DBRA-covered projects. The submission of wage data is encouraged, but voluntary. Contractors and others may use the WD-10 Form, Report of Construction Contractor’s Wage Rates(http://www.dol.gov/whd/programs/dbra/wd10/index.htm).

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Davis-Bacon and Related Acts, such as the DBRA Forms page(http://www.dol.gov/whd/programs/dbra/forms.htm). Other compliance assistance related to the Act — including the Davis-Bacon and Related Acts (DBRA) Web Page(http://www.dol.gov/whd/programs/dbra/index.htm) and regulatory and interpretive materials — is available on the Compliance Assistance "By Law"(http://www.dol.gov/compliance/laws/comp-dbra.htm) Web page. Also, the Wage Determinations OnLine(http://www.wdol.gov/) (WDOL) Web site provides a single location for federal contracting officers to obtain Davis-Bacon wage determinations for use in covered contracts. The WDOL Web site library provides a variety of links that relate to compliance with the prevailing wage laws that apply to federal and federally assisted contracts.

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 American Recovery and Reinvestment Act of 2009, the Federal-Aid Highway Acts, the Housing and Community Development Act of 1974, and the Federal Water Pollution Control Act.

The Copeland "Anti-Kickback" Act(http://www.dol.gov/whd/regs/statutes/copeland.htm) prohibits contractors 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, and requires contractors to submit a weekly statement of the wages paid to each employee performing DBRA covered work.

Contractors on projects subject to DBRA labor standards may also be subject to additional prevailing wage and overtime pay requirements under State and local laws. Also, overtime work pay requirements under CWHSSA and the Fair Labor Standards Act(http://www.dol.gov/whd/flsa/index.htm) may apply.

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 (CWHSSA).

Contractors and subcontractors may challenge determinations of violations and debarment before an Administrative Law Judge. Contractors and subcontractors may appeal decisions by Administrative Law Judge's 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.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


Employee Polygraph Protection Act of 1988 (EPPA)
(29 USC §2001 et seq.; 29 CFR Part 801)

Employee Polygraph Protection Act of 1988 (EPPA)
(
29 USC §2001 et seq.(http://www4.law.cornell.edu/uscode/29/2001.html); 29 CFR Part 801(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/8T&exitTitle=www.ecfr.gov&fedpage=yes))

Who is Covered

The Employee Polygraph Protection Act (EPPA) is administered by the Wage and Hour Division (WHD). The EPPA applies to most private employers. The law does not cover federal, state, and local government agencies.


Basic Provisions/Requirements

The EPPA prohibits most private employers from using lie detector tests, either for pre‑employment 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. Where polygraph examinations are allowed, they are subject to strict standards at the pre-test, testing, and post-testing stages. Specific notices must be given to employees or prospective employees. 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.


Recordkeeping, Reporting, Notices and Posters


Notices and Posters

Poster.  Every employer subject to EPPA shall post and keep posted on its premises a notice explaining the Act. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment. There is no size requirement for the poster. 

The EPPA poster is available in English(http://www.dol.gov/whd/regs/compliance/posters/eppa.htm) and Spanish(http://www.dol.gov/whd/regs/compliance/posters/eppaspan.htm). Posting of the EPPA poster in Spanish is optional.

Notices.  There are specific notices that must be given to examinees and examiners in instances where polygraph tests are permitted:

When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following information:

  • An identification with particulars on the specific economic loss or injury to the business of the employer
  • A description of the employee’s access to the property that is the subject of the investigation
  • A detailed description of the basis of the employer’s reasonable suspicion that the employee was involved in the incident or activity under investigation
  • The signature of a person (other than the polygraph examiner) authorized to legally bind the employer

Every employer who requests an employee or prospective employee to submit to a polygraph examination, pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions, must provide:

  • Reasonable written notice of the date, time, and place of the examination and the examinee’s right to consult with legal counsel or an employee representative before each phase of the test.
  • Written notice of the nature and characteristics of the polygraph instrument and examination
  • Extensive written notice explaining the examinee's rights, including a list of prohibited questions and topics, the examinee's right to terminate the examination, and the examinee's right to file a complaint with the Department of Labor alleging violations of EPPA

Employers must also provide written notice to the examiner identifying the persons to be examined.


Recordkeeping

In the limited instances where EPPA permits the administration of polygraph tests, recordkeeping requirements apply both to employers and polygraph examiners. Employers and polygraph examiners must retain required records for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted). 

Employers investigating an economic loss or injury must maintain a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular employee and proof of service of that statement to the examinee.

Employers who manufacture, distribute, or dispense controlled substances must maintain records specifically identifying the loss or injury in question and the nature of the employee’s access to the person or property that is the subject of the investigation.

Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must maintain:

  • A copy of the written statement that sets forth the time and place of the examination and the examinee’s right to consult with counsel
  • A copy of the written notice provided by the employer to the examiner identifying the persons to be examined
  • Copies of all opinions, reports or other records furnished to the employer by the examiner relating to such examinations

All polygraph examiners must maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons, as well as records of the number of examinations conducted during each day, and the duration of each test period.

All exempt private sector employers and polygraph examiners retained to administer examinations to persons identified by employers must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices where employment or examination records are customarily maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment or business, such records must be made available within 72 hours following notice from the Secretary of Labor or an authorized representative such as Wage and Hour Division personnel.


Reporting

There are no reporting requirements under EPPA.


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 appropriate legal and equitable relief, which may include 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 Administrative Review Board which the Secretary of Labor has designated to issue final agency decisions.  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.


Compliance Assistance Available

More detailed information, including copies of explanatory brochures and regulatory and interpretative materials, may be obtained from a local Wage and Hour office(http://www.dol.gov/whd/america2.htm).

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Employee Polygraph Protection Act. Compliance assistance related to the Act, including the Employee Polygraph Protection Act (EPPA) Fact Sheet(http://www.dol.gov/whd/regs/compliance/whdfs36.pdf), and regulatory and interpretive materials, is available on the Compliance Assistance "By Law"(http://www.dol.gov/compliance/laws/comp-eppa.htm) Web page.


DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


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) is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 130 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.

In addition, the Act covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full‑time babysitters, if they receive at least $1,700 in 2009 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. (This calendar year threshold is adjusted by the Social Security Administration each year.) For additional coverage information, see the Wage and Hour Division Fact Sheet #14: Coverage Under the FLSA(http://www.dol.gov/whd/regs/compliance/whdfs14.htm).

The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. 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(http://www.dol.gov/whd/america2.htm).

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) 1
  • 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)
  • 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
  • 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)
  • 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 $7.25 per hour effective July 24, 2009. 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. For additional information regarding the use of the youth minimum wage provisions, see the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage – FLSA(http://www.dol.gov/whd/regs/compliance/whdfs32.pdf).

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 and overtime for hours worked in excess of 40 hours in a workweek. 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 requirements.  For a full listing of the requirements an employer must meet to use the tip credit provision, see the Wage and Hour Division Fact Sheet #15: Tipped Employees Under the FLSA.(http://www.dol.gov/whd/regs/compliance/whdfs15.pdf)

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 rate of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt. For additional information regarding overtime pay requirements, see the Wage and Hour Division Fact Sheet #23: Overtime Pay Requirements of the FLSA.(http://www.dol.gov/whd/regs/compliance/whdfs23.pdf)

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 hour 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.

Special wage and hour provisions apply to state and local government employment.  For these special provisions, see the Wage and Hour Division Fact Sheet #7: State and Local Governments Under the FLSA.(http://www.dol.gov/whd/regs/compliance/whdfs7.pdf)

Employee Rights

Employees may find out how to file a complaint by contacting the local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm), or by calling the program's toll-free help line at 1-866-4USWAGE (1-866-487-9243). 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.

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.

Notices/Posters

Every employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(http://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(http://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(http://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(http://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(http://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(http://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(http://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf).  There is no requirement to post the poster in languages other than English(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm).

Covered employers are required to post the general Fair Labor Standards Act poster; however, certain industries have posters designed specifically for them. Employers of Agricultural Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster. There are also posters for American Samoa (PDF)(http://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and Northern Mariana Islands (PDF)(http://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf)

Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster(http://www.dol.gov/whd/regs/compliance/posters/disab.htm).

Recordkeeping

Every employer covered by the FLSA must keep certain records for each covered(http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=covered), nonexempt (http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=non_exempt)worker. 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.

There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:

  • Employee's full name, as used for Social Security purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records
  • Address, including zip code
  • Birth date, if younger than 19
  • Sex and occupation
  • Time and day of week when employee's workweek begins
  • Hours worked each day and total hours worked each workweek
  • Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
  • Regular hourly pay rate
  • Total daily or weekly straight-time earnings
  • Total overtime earnings for the workweek
  • All additions to or deductions from the employee's wages
  • Total wages paid each pay period
  • Date of payment and the pay period covered by the payment

For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Reporting

The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

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(http://www.dol.gov/whd/), or by contacting a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm). Another compliance assistance resource, the elaws Fair Labor Standards Act Advisor(http://www.dol.gov/elaws/flsa.htm), helps answers questions about workers and businesses that are subject to the FLSA.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available are:

Additional compliance assistance information is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-flsa.htm) Web page.

Relation to State, Local, and Other Federal Laws

State laws on wages and hours 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.

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 $1,100 per violation.

For child labor violations, employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions.  In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee – such penalty may be doubled, up to $100,000, when the violations are determined to be willful or repeated.

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.

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.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


Fair Labor Standards Act of 1938 (FLSA), as amended
(29 USC §201 et seq.; 29 CFR Parts 570 to 580)
Child Labor (Nonagricultural Work)

Who is Covered

The child labor provisions of the Fair Labor Standards Act (FLSA) are administered by the Wage and Hour Division (WHD). These provisions are designed to protect the educational opportunities of minors 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.

Employees of firms that do not meet the $500,000 annual dollar volume test may be subject to the FLSA’s child labor provisions 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.

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.

While 16 is the minimum age for most nonfarm work, minors aged 14 and 15 may work outside of school hours in certain occupations under certain conditions. Minors 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 of the Act 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 permissible jobs and hours of work, by age, in nonfarm work are as follows:

  • Minors age 18 or older are not subject to restrictions on jobs or hours
  • Minors age 16 and 17 may perform any job not declared hazardous by the Secretary, and are not subject to restrictions on hours
  • Minors age 14 and 15 may work outside school hours in various nonmanufacturing, non-mining, nonhazardous jobs listed by the Secretary in regulations published at 29 CFR Part 570 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. The permissible work for 14 and 15 year olds is limited to those jobs in the retail, food service, and gasoline service establishments specifically listed in the Secretary’s regulations. 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 a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm) and in 29 CFR Part 570(http://www.dol.gov/dol/cfr/Title_29/).

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 officially-issued employment or age certificate for each young worker to show that the minor has the minimum age for the job. Age or employment certificates issued under most state laws are generally acceptable for this purpose. See 29 CFR 570.5(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/87&exitTitle=www.ecfr.gov&fedpage=yes).

Employee Rights

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.

Notices/Posters

Every employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(http://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(http://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(http://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(http://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(http://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(http://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(http://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf).  There is no requirement to post the poster in languages other than English(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm).

Covered employers are required to post the general Fair Labor Standards Act poster; however, certain industries have posters designed specifically for them.  Employers of Agricultural Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster.  There are also posters for American Samoa (PDF)(http://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and Northern Mariana Islands (PDF)(http://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf)

Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster(http://www.dol.gov/whd/regs/compliance/posters/disab.htm).

Recordkeeping

Every employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered(http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=covered), nonexempt(http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=non_exempt) worker.

There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:

  • Employee's full name, as used for Social Security purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records
  • Address, including zip code
  • Birth date, if younger than 19
  • Sex and occupation
  • Time and day of week when employee's workweek begins
  • Hours worked each day and total hours worked each workweek
  • Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
  • Regular hourly pay rate
  • Total daily or weekly straight-time earnings
  • Total overtime earnings for the workweek
  • All additions to or deductions from the employee's wages
  • Total wages paid each pay period
  • Date of payment and the pay period covered by the payment

For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements under the FLSA(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Reporting

The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available are:

Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-flsa.htm) Web page and the Wage and Hour Division Home Page(http://www.dol.gov/whd).

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.

Penalties/Sanctions

The “hot goods” provisions of the Act prohibit 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.

Employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions. In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee – such penalty may be doubled, up to $100,000, when the violations are determined to be willful or repeated. 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 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 filed within the 15 days, 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.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


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) is administered by the Wage and Hour Division (WHD). The 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 also 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(http://www.opm.gov/oca/leave/HTML/fmlafac2.asp) issued by the Office of Personnel Management.

To be eligible for FMLA leave, an individual must meet the following criteria:

  • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
  • Have worked at least 12 months (which do not have to be consecutive) for the employer; and
  • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins. 

An employer need not count employment prior to a break in service of seven years or more unless there was a written agreement between the employer and employee (including a collective bargaining agreement) to rehire the employee, or the break in service was due to fulfillment of military service in the National Guard or Reserves. 

Basic Provisions/Requirements

The FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specified family and medical reasons.  Eligible employees are entitled to:

  • Twelve workweeks of leave in any 12-month period for:
     
    • Birth and care of the employee's child, within one year of birth
    • Placement with the employee of a child for adoption or foster care, within one year of the placement
    • Care of an immediate family member (spouse, child, parent) who has a serious health condition
    • For the employee's own serious health condition that makes the employee unable to perform the essential functions of his or her job
    • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation
       
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (Military Caregiver Leave)

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. An employee may elect (or the employer may require) the substitution of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.  Substitution means the accrued paid leave runs concurrently with the FMLA leave period.  An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.

Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth of a child is also subject to the employer's approval.  However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered servicemember. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

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 notice as soon as practicable in the particular circumstances.  An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  In requesting leave an employee must provide sufficient information for the employer to reasonably determine whether the FMLA may apply to the leave request.  When the employee seeks leave for a qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.

An employer may require that a serious health condition, or a serious illness or injury of a covered servicemember, be supported by a certification from the employee's health care provider, the employee’s family member’s health care provider, or an authorized health care provider of the covered servicemember. An employer may also require periodic reports of the employee's status and intent to return to work during the leave. Additionally, under certain conditions, an employer may require that an employee who takes FMLA leave for his or her own serious health condition submit a certification from the employee’s health care provider that the employee is able to return to work, a "fitness‑for‑duty" certification.

An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.  The employee may, but is not entitled to, accrue additional benefits during periods of unpaid FMLA leave.  However, the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.

Employee Rights

The FMLA provides that eligible employees of covered employers have a right to take job-protected leave for qualifying events without interference or restraint from their employers. An eligible employee has the right to have group health insurance maintained during a period of FMLA leave under the same terms and conditions as if the employee had not taken leave and has the right to be restored to the same or an equivalent position at the end of the FMLA leave.

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.

Employees and other persons may file complaints with a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm). The Department of Labor may file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Most employees also have private rights of action, without involvement of the Department of Labor, to correct violations and recover damages through the courts.

Failure on the part of employers to follow the FMLA notice requirements, may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights.

Notices/Posters

Poster.  All covered employers are required to display and keep on display a poster explaining the provisions of the FMLA and telling employees how to file a complaint with the Wage and Hour Division of violations of the Act. The poster must be displayed prominently where employees and applicants for employment can see it .The poster and all the text must be large enough to be easily read and contain fully legible text.  Covered employers must display the poster even if no employees are eligible for FMLA leave.  

Where the employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer is required to provide the notice in a language in which the employees are literate.  To meet the posting requirements, employers may use the prototype poster prepared by the Department or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice.  Electronic posting is permitted as long as it meets all of the posting requirements.

The Department’s FMLA prototype poster is available in English(http://www.dol.gov/whd/regs/compliance/posters/fmla.htm) and Spanish(http://www.dol.gov/whd/regs/compliance/posters/fmlaspan.htm)

Employer notices.  Covered employers are required to post a notice for employees outlining the basic provisions of the FMLA. Employers are also required to provide notice of an employee’s eligibility and rights and responsibilities under the FMLA and to designate qualifying leave as FMLA and provide notice of that designation, including the amount of leave that will count against the employee’s FMLA entitlement to the employee.  

General notice.  If a covered employer has any eligible employees, it must also provide general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning benefits or leave rights if such written materials exist.  If such written materials do not exist, the employer may accomplish this by distributing a copy of the general notice to each new employee upon hire.  In either case, distribution may be accomplished electronically. 

An employer may duplicate the text of the Poster to meet this general notice requirement, or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice.  Where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer must provide the general notice in a language in which the employees are literate.

Eligibility notice.  When an employee requests FMLA leave or the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. The eligibility notice must state whether the employee is eligible for FMLA leave, and if the employee is not eligible, must state at least one reason why the employee is not eligible.

The Department of Labor makes available a Prototype Eligibility and Rights and Responsibilities Notice(http://www.dol.gov/whd/forms/wh-381.pdf) (Form WH-381), which employers may adapt as appropriate for their use to meet their eligibility and rights and responsibilities (see below) notice requirements.

Rights and Responsibilities notice. Each time the eligibility notice is provided, the employer is also required to provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. If leave has already begun, the employer should mail the notice to the employee’s address of record. The employer must translate this notice in any situation where it is obligated to translate the general notice into a language in which employees are literate. The written notice must also include information on:

  • Leave designated and counted against the employee’s annual FMLA leave entitlement if it qualifies as FMLA leave
  • The applicable 12-month period for the FMLA entitlement
  • Requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so
  • Employee’s right to substitute paid leave, whether the employer will require the substitution of paid leave, the conditions related to any substitution, and the employee’s entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave
  • Requirement for the employee to make any premium payments to maintain health benefits, the arrangements for making such payments, and the possible consequences of the failure to make such payments on a timely basis
  • Employee’s status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial
  • Employee’s rights to maintenance of benefits during the FMLA leave and to restoration to the same or an equivalent job upon return from leave
  • Employee’s potential liability for payment of health insurance premiums paid by the employer during the employee’s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave

The specific notice may include other information such as whether the employer will require periodic reports of the employee’s status and intent to return to work, but is not required to do so. The notice of rights and responsibilities may be accompanied by any required certification form.

If the specific information provided by the notice changes, the employer must provide written notice referencing the prior notice and setting forth any of the information that has changed. This notice of changes should be provided within five business days of receipt of the employee's first notice of need for leave subsequent to any change.

The Department makes available a Prototype Eligibility and Rights and Responsibilities Notice(http://www.dol.gov/whd/forms/WH-381.pdf) (Form WH-381), which employers may adapt as appropriate for their use to meet their eligibility and rights and responsibilities notice requirements.

Designation notice. The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, such as after receiving a certification, the employer must notify the employee whether the leave is designated and will count as FMLA leave within five business days, absent extenuating circumstances. Only one designation notice for each FMLA-qualifying reason per applicable 12-month leave year is required. The employer must also notify the employee if it determines that the leave is not FMLA-qualifying and will not be designated as FMLA leave.

If the employer is requiring the employee to submit a fitness-for-duty certification to be restored to his or her job, the employer must provide notice of the requirement with the designation notice. If the employer will require that the fitness-for-duty certification address the employee’s ability to perform the essential functions of the employee’s position, the employer must indicate so in the designation notice and include a list of the essential functions. If the employer handbook or other written documents describing the employer's leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances, the employer is not required to provide written notice of this requirement, but must provide at least oral notice no later than at the time off the designation notice.

The designation notice must be in writing. The Department of Labor makes available a prototype Designation Notice(http://www.dol.gov/whd/forms/WH-382.pdf) (Form WH-382) for employer’s use. If the leave is not designated as FMLA leave because it does not meet the requirements for FMLA protection, the notice that the leave is not designated FMLA may be in the form of a simple written statement. If the information provided by the employer to the employee in the designation notice changes, the employer must provide written notice of the change within five business days of receipt of the employee’s first notice of need for leave subsequent to the change.

Additionally, the employer must notify the employee of the amount of leave counted against his or her FMLA entitlement. If known at the time the leave is designated, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA entitlement. If it is not possible to provide the hours, days, or weeks that will be counted against the entitlement (such as in the case of unforeseeable, intermittent leave), then the employer must provide notice of the amount of leave counted against the FMLA leave entitlement at the request of the employee, but no more often than once in a 30-day period and only if leave was taken in that period. Notice of the amount of leave taken may be oral, but if oral, must be confirmed in writing, generally by no later than the following payday; such written notice may be in any form, including a pay stub notation.

Recordkeeping

Employers are required to make, keep, and preserve records pertaining to their obligations under FMLA in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA). The FMLA does not require that employers keep their records in any particular order or form, or revise their computerized payroll or personnel records systems to comply.

Employers must keep the records for no less than three years and make them available for inspection, copying, and transcription by Department of Labor representatives upon request. Records kept in computer form must be made available for transcription and copying.

Covered employers who have eligible employees must maintain records that must disclose the following:

  • Basic payroll and identifying information (including name, address, and occupation)
  • Rate or basis of pay
  • Terms of compensation
  • Daily and weekly hours worked per pay period
  • Additions to or deductions from wages
  • Total compensation paid

In addition, covered employers who have eligible employees must also maintain records detailing:

  • Dates of FMLA leave taken by FMLA eligible employees. Leave must be designated in records as FMLA leave, and may not include leave required under state law or an employer plan which is not also covered by FMLA.
  • Hours of FMLA leave taken by FMLA eligible employees, if leave is taken in increments of less than one full day
  • Copies of employee notices of leave furnished to the employer
  • Copies of all written notices given to employees as required under FMLA
  • Documents describing employee benefits or employer paid and unpaid leave policies and practices
  • Premium payments of employee benefits
  • Records of disputes between the employer and the employee regarding FMLA

Records and documents relating to medical certifications, re-certifications or medical histories of employees or employees’ family members, created for purposes of FMLA, are required to be maintained as confidential medical records in separate files/records from the usual personnel files. If the Americans with Disabilities Act (ADA) applies, then these records must comply with the ADA confidentiality requirements. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations. First aid and safety personnel may be informed, where appropriate, if the employee’s physical or medical condition might require emergency treatment. Government officials investigating compliance must be provided access to relevant information.

Reporting

There are no reporting requirements under FMLA.

Compliance Assistance Available

More detailed information, including copies of explanatory brochures, may be obtained by contacting the local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm). Compliance assistance information is also available from the Wage and Hour Division's Web site(http://www.wagehour.dol.gov). For additional assistance, contact the Wage and Hour Division at 1-866-4USWAGE (1-866-487-9243).

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Family and Medical Leave Act. Among the many resources available are:

Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-fmla.htm) Web page.

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.

Penalties/Sanctions

Covered employers are required to post a notice for employees outlining the basic provisions of the FMLA and are subject to a $110 civil money penalty if they willfully fail to post such a notice.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


The Occupational Safety and Health Act of 1970 (OSH Act)
(29 USC §651 et seq.; 29 CFR Parts 1900 to 2400)

Who is Covered

The Occupational Safety and Health Act of 1970 (OSH Act) is administered by the Occupational Safety and Health Administration (OSHA). In general, the 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 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.

Compliance with standards may include implementing engineering controls to limit exposures to physical hazards and toxic substances, implementing administrative controls, as well as   ensuring that employees have been provided with, have been effectively trained on, and use personal protective equipment when required for safety and health, where the former controls cannot be feasibly implemented. 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 27 OSHA State Plan States, of which 22 states and jurisdictions operate 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.

Employee Rights

The Act grants employees several important rights. Among them are the right to file a complaint with 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.

Notices/Posters

Poster. All covered employers are required to display and keep displayed the OSHA “Job Safety and Health: It’s the Law(http://www.osha.gov/Publications/poster.html)” poster unless the employer’s workplace is located in a state that operates an OSHA-approved state plan(http://www.osha.gov/dcsp/osp/index.html). There is a separate poster for Federal agencies(http://www.osha.gov/Publications/fedposter.html). The OSHA poster must be displayed in a conspicuous place where employees can see it. Reproductions or facsimiles of the poster shall be at least 8 1/2 by 14 inches with 10 point type. This poster is also available in Spanish(http://www.osha.gov/Publications/osha3167.pdf). Posting of the notice in languages other than English is not required.

Each state or territory with a state plan has a poster that employers covered by the plan must display. State plan OSHA offices(http://www.osha.gov/dcsp/osp/states.html) can be contacted to obtain a copy.  Contact your Federal OSHA office(http://www.osha.gov/html/oshdir.html) or your state plan office to determine coverage.

Notices. Employees, former employees and their representatives have the right to review the OSHA Form 300, Log of Work-related Illnesses and Injuries, in its entirety. Employers are required to post the Summary of Work-related Injuries and Illnesses (Form300A)(http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf#Page=8) in a visible location so that employees are aware of the injuries and illnesses that occur in their workplace. Employers are required to post the Summary Form (300A) by February 1 of the year following the year covered by the form and keep it posted until April 30 of that year.

Recordkeeping

OSHA-approved state plan states(http://www.osha.gov/dcsp/osp/) must adopt occupational injury and illness recording requirements that are substantially identical to the Federal OSHA requirements. Since each state plan’s requirements may differ slightly, the Federal OSHA requirements are described below.

Records for employers with 10 or fewer employees. Employers with 10 or fewer employees at all times during the last calendar year do not need to keep OSHA injury and illness records unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that records must be kept. However, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees.

Records for employers in certain industries. If an employer’s business is in an industry that is classified as low hazard, the employer does not need to keep records unless OSHA or the BLS asks them to do so in writing. The partial industry classification exemption(http://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html) applies to individual establishments. If a company has several establishments engaged in different classes of business activities, some of the company’s establishments may be required to keep records, while others may be exempt. Industries currently designated as low-hazard include:

  • Automobile dealers
  • Apparel and accessory stores
  • Eating and drinking places
  • Most finance, insurance, and real estate industries
  • Certain service industries, such as personal and business services, medical and dental offices, and legal, educational, and membership organizations

Business establishments classified in agriculture, mining, construction, manufacturing, transportation, communication, electric, gas and sanitary services, or wholesale trade are not eligible for the partial industry classification exemption.

All other employers. Employers are required to use the Form 300 Log of Work-Related Injuries and Illnesses to classify work-related injuries and illnesses and to note the extent and severity of each case. When an incident occurs, the Log is used to record specific details about what happened and how it happened.

If the employer has more than one establishment or site, separate records for each physical location that is expected to remain in operation for one year or longer must be kept.

Employers are required to keep a separate Log (Form 300) and Summary of Work-Related Injuries and Illnesses (Form 300A) for each physical location that is expected to be in operation for one year or longer. The Injury and Illness Incident Report (Form 301) is filled out when a recordable work-related injury or illness has occurred. Together with the Form 300 and Form 300A, these forms(http://www.osha.gov/recordkeeping/RKforms.html) help the employer and OSHA develop a picture of the extent and severity of work-related incidents.

Employers must record work-related injuries and illnesses that result in:

  • Death
  • Days away from work
  • Restricted work activity or job transfer
  • Medical treatment beyond first aid
  • Loss of consciousness

Employers must record any significant work-related injuries and illnesses that are diagnosed by a physician or other licensed health care professional, such as any work-related case involving cancer, chronic irreversible disease, a fractured or cracked bone or a punctured eardrum.

Employers must record the following conditions when they are work-related:

  • Any needle-stick injury or cut from a sharp object that is contaminated with another person’s blood or other potentially infectious material
  • Any case requiring an employee to be medically removed under the requirements of an OSHA health standard
  • Work-related cases involving hearing loss under certain conditions
  • Tuberculosis infection as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional after exposure to a known case of active tuberculosis

Employers do not have to record certain injury and illness incidents such as a visit to a doctor solely for observation and counseling or those requiring first aid treatment only.  For more information see the full list of Non-recordable Injury and Illness Incidents(http://www.dol.gov/elaws/firststep/OSHA_non-recordable.htm).

Reporting

OSHA-approved state plan states(http://www.osha.gov/dcsp/osp/) must adopt occupational injury and illness reporting requirements that are substantially identical to the Federal OSHA requirements. Since each state plan’s requirements may differ slightly, the Federal OSHA requirements are described below.

All employers must report any workplace incident to OSHA within eight hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees. Employers must orally report the fatality/multiple hospitalization by telephone or in person to the Area OSHA office that is nearest to the site of the incident. Employers may also use the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Occupational Safety and Health Act. Among the many resources available are:

Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.osha.gov/law-regs.html) Web page.

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(http://www.osha.gov/dcsp/compliance_assistance/index.html) on its Web site that provides links to these materials. A variety of information is also available on OSHA’s Publications Web site(http://www.osha.gov/pls/publications/pubindex.list), including online publication order forms, the OSHA poster, and guidance on OSHA recordkeeping. Publications can also be ordered from the OSHA Publications Office at 1-202-693-1888.

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 State Occupational Safety and Health Plans Web page(http://www.osha.gov/fso/osp/index.html).

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), OSHA Challenge, 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 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.

An employer may apply for VPP at the nearest OSHA regional office(http://www.osha.gov/html/RAmap.html). 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/catastrophes, or fatalities according to routine procedures.

The VPP is available in states under federal jurisdiction. Some states operating OSHA-approved state plans have similar programs. Additionally, all OSHA-approved state plans that cover private-sector employees in the state operate 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.

OSHA Challenge: This program provides opportunities for employers to work with OSHA and qualified volunteers (Challenge Administrators) to develop safety and health management systems (SHMS) on par with VPP and SHARP. OSHA Challenge breaks down SHMS implementation in three stages. For each stage, the participants identify actions, documentation, and outcomes. Unique aspects of OSHA Challenge include: no application prerequisites for participants except for a letter of commitment stating that they will follow the program and strive for safety and health excellence; no time constraints to complete the stages, which allows participants to work at their own level and pace; and the use of Challenge Administrators experienced in SHMS to assist participants, which limits the OSHA resources needed to manage the program.

Alliance Program: Through the Alliance Program, OSHA works with businesses, trade and professional organizations, unions, educational institutions, and other government agencies. Alliance Program participants work with OSHA to leverage resources and expertise to help develop compliance assistance tools, training opportunities, and other information to help employers and employees prevent on-the-job injuries, illnesses, and fatalities. OSHA’s Alliances with organizations in industries such as plastics, healthcare, maritime, chemical, construction, paper and telecommunications, among others, are working to address safety and health hazards with at-risk audiences, such as youth, immigrant workers, and small business.

Strategic Partnership Program: In this program, OSHA enters into an extended, voluntary, cooperative relationship with employers, associations, unions, and/or councils. Partnerships often cover multiple worksites, and in some instances, affect 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.

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(http://www.osha.gov/dcsp/compliance_assistance/cas.html)). 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(http://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 OSHA Training Institute has partnered with other training and education institutes to conduct Training Institute courses. These Education Centers(http://www.osha.gov/dte/edcenters/index.html), which are located throughout the country, provide additional opportunities for the public to receive training on safety and health topics.

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 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 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 Consultation Program Web page(http://www.osha.gov/dcsp/smallbusiness/consult.html).

Information sources: Information about state plans, VPPs, consultation programs, and inspections can be obtained from the nearest OSHA regional or area office(http://www.osha.gov/html/RAmap.html). 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 also be found on the OSHA Web site(http://www.osha.gov/).

OSHA’s Office of Small Business Assistance(http://www.osha.gov/dcsp/osba/index.html) 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.

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. Federal agency heads are responsible for 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(http://www.dol.gov/compliance/guide/whistle.htm) section of this Guide and OSHA’s Whistleblower Protection Web page(http://www.osha.gov/dep/oia/whistleblower/index.html).

Penalties/Sanctions

Every establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers (CSHOs). These occupational safety and health professionals possess the knowledge and experience required to conduct workplace inspections; they have been thoroughly trained in recognizing safety and health hazards and in enforcing OSHA’s Standards.  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, including OSHA’s Field Operations Manual(http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-148.pdf).

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.

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.

Repeat violation: A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation is found. Repeat 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 abate 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

The following outlines procedures for appealing OSHA citations and penalties.

Appeals by employees and employers: 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 employer may submit a written objection to OSHA. If the PMA requests an abatement date that is two years or less from the issuance date of the citation, the Area Director has the authority to approve or object to the petition.

Any PMA requesting an abatement date that is more than two years from the issuance date of the citation requires the approval of the Regional Administrator as well as the Area Director. If the PMA is approved, the Area Director shall notify the employer and the employee representatives by letter.

The Area Director or Regional Administrator (as appropriate), after consultation with the RSOL, shall object to a PMA where the evidence supports non-approval (e.g., employer has taken no meaningful abatement action at all or has otherwise exhibited bad faith). In such cases, all relevant documentation shall be sent to the Review Commission in accordance with §1903.14a(d). Both the employer and the employee representatives shall be notified of this action by letter, with return receipt requested. Letters notifying the employer or employee representative of the objection shall be mailed on the same date that the agency objection to the PMA is sent to the Review Commission.

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.

Informal conferences: When issued a citation or notice of a proposed penalty, an employer may request an informal conference 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, 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.

DOL Contacts

Occupational Safety and Health Administration (OSHA) (http://www.osha.gov)
Contact OSHA(http://www.osha.gov/html/Feed_Back.html)
Tel.: 1-800-321-OSHA (1-800-321-6742); TTY: 1-877-889-5627


McNamara-O'Hara Service Contract Act (SCA)
(41 USC §351 et seq.; 29 CFR Parts 4, 6, and 8)

Who is Covered

The wage and hour requirements of the McNamara-O'Hara Service Contract Act (SCA) are administered by the Wage and Hour Division (WHD). The Act covers contracts and any bid specifications in excess of $2,500, whether negotiated or advertised, 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 a 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(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/7Z&exitTitle=www.ecfr.gov&fedpage=yes).

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(http://www.dol.gov/whd/contracts/dbra.htm));
  • Work required in accordance with the provisions of the Walsh-Healey Public Contracts Act(http://www.dol.gov/whd/contracts/pca.htm);
  • 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 SCA requires contractors and subcontractors performing services on prime contracts in excess of $2,500 to pay service employees in various classes no less 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 as provided in wage determinations issued by the Department of Labor. 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 $7.25 per hour effective July 24, 2009. Contractors must also, under the provisions of the Contract Work Hours and Safety Standards Act(http://www.dol.gov/whd/contracts/cwhssa.htm) and the Fair Labor Standards Act,(http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf) 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 accepts complaints of alleged SCA wage violations.

Notices/Posters

Every employer performing work covered by the Service Contract Act is required to provide each employee working on the contract notice of the SCA payment and fringe benefit requirements for the different classes of service employees and to post the “Employee Rights on Government Contracts(http://www.dol.gov/whd/regs/compliance/posters/sca.htm)” notice (including any applicable wage determination) at the site of the work in a prominent and accessible place where it may be easily seen by employees.  There are no size requirements for the poster.  The Employee Rights on Government Contracts poster is available Spanish(http://www.dol.gov/whd/regs/compliance/posters/scaspan.htm) as well.

If the contractor employs workers with disabilities under special minimum wage certificates, the “Notice to Workers with Disabilities/Special Minimum Wage (PDF) poster”(http://www.dol.gov/whd/regs/compliance/posters/disab.htm) must also be posted. This poster explains the conditions under which special minimum wages may be paid.  It must be posted in a conspicuous place on the employer’s premises where it can be readily seen by employees and the parents or guardians of workers with disabilities.

Recordkeeping

Some of the records required to be kept under this law are also required under the Fair Labor Standards Act (see Wage and Hour Division Fact Sheet #21: Recordkeeping(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf)).

Under the Service Contract Act, contractors and subcontractors are required to maintain certain records for each employee performing work on the covered contract. Basic records, such as name, address, and Social Security number of each employee must be maintained for three years from completion of the work. In addition, records on the following must be maintained for three years:

  • The correct work classification(s), wage rate(s), and fringe benefits provided (or cash equivalent payments provided in lieu of fringe benefits)
  • The total daily and weekly compensation of each employee
  • The number of daily and weekly hours worked by each employee
  • Any deductions, rebates, or refunds from each employee’s compensation
  • Any list of a predecessor contractor’s employees which had been furnished showing employee’s length of service information
  • A list of wages and fringe benefits for those classes of workers conformed to the wage determination attached to the contract

The contractor shall also make available a copy of the contract upon request from the Wage and Hour Division.

Reporting

There are no reporting requirements under the Service Contract Act.

A government contracting agency may request a wage determination by filing Standard Form (SF) 98 for contracts in excess of $2,500.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the SCA. Among the resources available to help comply with the SCA are:

Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-sca.htm) Web page.

Relation to State, Local, and Other Federal Laws

The SCA 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.

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.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


Uniformed Services Employment and Reemployment Rights Act (USERRA)
(38 USC §§4301 through 4334)

Who is Covered

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is administered by the Veterans’ Employment and Training Service (VETS). USERRA 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

USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

The pre-service employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria:

  • The person must have been absent from a civilian job on account of service in the uniformed services;
  • The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
  • The cumulative period of military service with that employer 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, unless timely reporting back or application was impossible or unreasonable.

USERRA establishes a five-year cumulative total of 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. USERRA also allows an employee to complete an initial period of active duty that exceeds five years.

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.

Employee Rights

USERRA provides that returning servicemembers are to be reemployed in the job that they would have attained had they not been absent for military service, (the "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the "escalator" position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence. 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.

Health and pension plan coverage for servicemembers is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed. USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under federal or state laws governing pension benefits for government employees. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.

Notices/Posters

Employers are required to provide to persons covered by USERRA a notice of the rights, benefits, and obligations of the employees and employers under USERRA.  To do this, employers may post the notice entitled “Your Rights Under USERRA(http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf)” where employer notices are customarily placed, mail it, or by distributing it via electronic mail. There is no size requirement for the poster version of the notice.

Recordkeeping

There are no required records under USERRA.

Reporting

There are no required reports under USERRA.

Compliance Assistance Available

Compliance assistance information is available on the VETS Web site(http://www.dol.gov/vets/). Specific compliance assistance materials available include: the Department of Labor USERRA regulations (20 CFR Part 1002)(http://www.dol.gov/vets/regs/fedreg/final/2005023961.htm), which implement the law for non-federal employers; a fact sheet(http://www.dol.gov/vets/programs/userra/userra_fs.htm) about USERRA; and the notice/poster(http://www.dol.gov/vets/programs/userra/poster.htm) to employees of their rights, benefits, and obligations under USERRA. Copies of VETS publications, or answers to questions about USERRA, may also be obtained from a local VETS office(http://www.dol.gov/vets/aboutvets/contacts/main.htm).

Another compliance assistance resource, the elaws Uniformed Services Employment and Reemployment Rights Act (USERRA) Advisor(http://www.dol.gov/elaws/userra.htm), helps veterans understand employee eligibility and job entitlements, employer obligations, benefits, and remedies under the Act.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Uniformed Services Employment and Reemployment Rights Act. Among the many resources are Frequently Asked Questions for Reservists being Called to Active Duty(http://www.dol.gov/ebsa/faqs/faq_911_2.html), explanatory brochures, fact sheets, and regulatory and interpretive materials which are available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-userra.htm) Web page.

Relation to State, Local, and Other Federal Laws

USERRA does not preempt state laws providing greater or additional rights or benefits, but it does preempt state laws providing lesser rights or benefits or imposing additional eligibility criteria.

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.

DOL Contacts

Veterans’ Employment and Training Service (VETS)(http://www.dol.gov/vets/)
E-mail: contact-vets@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-202-693-4770; TTY: 1-877-889-5627


Walsh-Healey Public Contracts Act (PCA)
(41 USC §35 et seq.; 41 CFR Parts 50-201, 202, 203, and 210)

Who is Covered

The wage and hour requirements of the Walsh-Healey Public Contracts Act (PCA) are administered by the Wage and Hour Division (WHD). The 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 PCA covers employees who produce, assemble, handle, or ship goods under these contracts.

The PCA 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 the PCA. 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
  • 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 $7.25 per hour effective July 24, 2009. 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 PCA 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(http://www.dol.gov/whd/) accepts complaints of alleged PCA violations.

Notices/Posters

Every employer performing work covered by the PCA is required to post the “Employee Rights on Government Contracts”(http://www.dol.gov/whd/regs/compliance/posters/sca.htm) notice (including any applicable wage determination) at the site of the work in a prominent and accessible place where it may be easily seen by employees.  There are no size requirements for the poster. The Employee Rights on Government Contracts poster is also available in Spanish(http://www.dol.gov/whd/regs/compliance/posters/scaspan.htm).

If the contractor employs workers with disabilities under special minimum wage certificates, the "Notice to Workers with Disabilities/Special Minimum Wage (PDF) poster"(http://www.dol.gov/whd/regs/compliance/posters/disab.htm) must also be posted. This notice explains the conditions under which special minimum wages may be paid.  The poster must be posted in a conspicuous place on the employer’s premises where it can be readily seen by employees and the parents or guardians of workers with disabilities.

Recordkeeping

Under the PCA, contractors and subcontractors are required to maintain certain records which must be available for inspection by the Wage and Hour Division. Records providing the following information for each covered employee must be kept on file for at least three years from their last date of entry:

  • Name, address, sex and occupation
  • Date of birth of each employee under 19 years of age. If the employer has obtained a certificate of age, the following must be recorded: the title and address of the office issuing the certificate; the number of the certificate; the date of issuance; the name, address and date of birth of the minor as the name appears on the certificate
  • Wage and hour records, which include the rate of wages and the amount paid each pay period, the hours worked each day and each week, the period during which the employee worked on a Government contract, and the number of the contract

The employer must maintain records providing the following information for at least two years from their last date of entry, or their last effective date, if later:

  • Basic employment and earnings records such as daily time cards, time sheets or records showing amounts of work accomplished
  • Wage rate tables
  • Work time schedules

Reporting

There are no reporting requirements. 

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Walsh-Healey Public Contracts Act. Compliance assistance related to the Act includes the PCA Compliance Assistance Web page(http://www.dol.gov/whd/contracts/pca.htm). Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page.

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 the PCA. When this happens, the employer must observe the law setting the stricter standard.

The Walsh-Healey Public Contracts Act and the Fair Labor Standards Act may apply simultaneously to the same employer.

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 of Labor 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.

Upon issuance and service of a formal complaint on the contractor, a hearing shall be scheduled before an Administrative Law Judge. The decision of the Administrative Law Judge may be appealed to the Administrative Review Board. Final Board determinations on violations and debarment may be appealed to and are enforceable through the federal courts.

DOL Contacts

Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627


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 (WARN) Act is administered by the Employment and Training Administration (ETA). 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 less than 20 hours per week, or those employers with 100 or more employees, including part-time workers, who in the aggregate work at least 4,000 hours per week, exclusive of overtime. 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 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer’s workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

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 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.

Notices/Posters

There are no workplace poster requirements under the WARN Act.

Employers do have notice requirements under the WARN Act. 

If an employer orders a plant closing or mass layoff, it is required to provide notification to the employees or their representatives, the state dislocated worker units, (so that they can promptly offer dislocated worker assistance), and the chief elected officials of local governments.

Notices to employees or their representatives.  WARN requires employers to notify either the individual employees affected by a plant closing or mass layoff or their representatives at least 60 calendar days prior to any planned plant closing or mass layoff.  If employees are terminated on different dates, the date of the first individual termination within the statutory 30-day or 90-day period triggers the 60-day notice requirement.

Notices to representatives.  These notices must contain the following:

  • The name and address of the employment site where the plant closing or mass layoff will occur, and the name and telephone number of a company official to contact for further information
  • A statement about whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  • The expected date of the first separation and the anticipated schedule for making separations
  • The job titles of positions to be affected and the names of the workers currently holding affected jobs

Notices to individual employees.  If the affected employees do not have a representative, the notice is to be written in language understandable to the employees and is to contain:

  • A statement about whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  • The expected date when the plant closing or mass layoff will begin, and the expected date when the individual employee will be separated
  • An indication whether or not bumping rights exist
  • The name and telephone number of a company official to contact for further information

The notice may include additional information useful to the employees such as information on available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration.

Notices to State Dislocated Worker Units and the chief elected officials of local governments.  WARN requires employers to separately provide notices to the state dislocated worker unit and to the chief elected official of the unit of local government in which the affected plant is located.  The notice should contain:

  • The name and address of the employment site where the plant closing or mass layoff will occur, and the name and telephone number of a company official to contact for further information
  • A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  • The expected date of the first separation, and the anticipated schedule for making separations
  • The job titles of positions to be affected, and the number of affected employees in each job classification
  • An indication as to whether or not bumping rights exist
  • The name of each union representing affected employees, and the name and address of the chief elected officer of each union

The notice may include additional information useful to the employees such as a statement of whether the planned action is expected to be temporary and, if so, its expected duration.  As an alternative, an employer may give notice to the state dislocated worker unit and to the unit of local government by providing them with a written notice stating:

  • The name and address of the employment site where the plant closing or mass layoff will occur
  • The name and telephone number of a company official to contact for further information
  • The expected date of the first separation
  • The number of affected employees

If the employer chooses the alternative notice, the information required for the longer form of notice must be maintained on-site where it is readily accessible to the state dislocated worker unit and to the unit of local government.

Recordkeeping

There are no recordkeeping requirements.

Reporting

There are no reporting requirements.

Compliance Assistance Available

For general information about WARN, a fact sheet(http://www.doleta.gov/programs/factsht/warn.htm) and employer's guide (PDF)(http://www.doleta.gov/layoff/pdf/EmployerWARN09_2003.pdf) are available from the Employment and Training Administration’s Web site(http://www.doleta.gov/). Specific requirements of WARN may be found in the Act(http://www4.law.cornell.edu/uscode/29/2101.html) itself and the regulations at 20 CFR Part 639(http://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/4W&exitTitle=www.ecfr.gov&fedpage=yes).

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Worker Adjustment and Retraining Notification Act. Compliance assistance related to the Act, including the elaws WARN Advisor(http://www.dol.gov/elaws/warn.htm) and WARN Guide to Advance Notice of Closings and Layoffs(http://www.doleta.gov/layoff/warn.cfm) is available on the Compliance Assistance “By Law”http://www.dol.gov/compliance/laws/comp-warn.htm Web page.

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.

Penalties/Sanctions

WARN is enforced through the U.S. District Courts. Workers, their representatives, and units of local government may bring individual or class action suits against employers believed to be in violation of the Act. The Department of Labor has no authority or legal standing in any enforcement action and cannot provide specific binding or authoritative opinions or guidance about individual situations. The Department of Labor provides assistance in understanding the law and regulations to individuals, firms, and communities.

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.

DOL Contacts

Employment and Training Administration (ETA)(http://www.doleta.gov), Office of National Response, Division of Worker Dislocation and Special Response
Tel: 1-877-US2JOBS (1-877-872-5627) or 1-202-693-3500; TTY: 1-877-889-5627


Whistleblower Protection Provisions
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
National Transit Systems Security Act (NTSSA)
Federal Rail Safety Act

The Occupational Safety and Health Administration (OSHA) administers the employee protection (or "whistleblower") provisions of sixteen statutes.

Who is Covered

The Occupational Safety and Health Administration (OSHA) administers the employee protection or “whistleblower” provisions of seventeen statutes.

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for exercising any right afforded by the OSH act, such as complaining to the employer union, OSHA, or any other government agency about workplace safety or health hazards; or for participating in OSHA inspection conferences, hearings, or other OSHA-related activities.

Under the Surface Transportation Assistance Act (STAA), employees and certain independent contractors in the trucking industry may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting certain commercial motor vehicle (CMV) safety, health, or security concerns; for refusing to drive under dangerous circumstances or in violation of CMV safety, health, or security rules; for accurately reporting their hours on duty; for cooperating with safety or security investigations conducted by certain federal agencies; or for furnishing information to a government agency relating to any accident or incident resulting in injury or death or damage to property in connection with CMV transportation.

Under the Asbestos Hazard Emergency Response Act (AHERA), employees may file complaints with OSHA if they believe they have experienced discrimination or retaliation for reporting alleged violations of environmental laws relating to asbestos in elementary and secondary school systems.

Under the International Safe Container Act (ISCA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting allegations of an unsafe cargo container.

Under the Energy Reorganization Act (ERA), certain employees in the nuclear power and nuclear medicine industries may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of nuclear safety laws or regulations.

Under the Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Federal Water Pollution Control Act (FWPCA),(http://www4.law.cornell.edu/uscode/33/1367.html) Toxic Substances Control Act (TSCA), (http://www4.law.cornell.edu/uscode/15/2622.html)Solid Waste Disposal Act (SWDA), (http://www4.law.cornell.edu/uscode/42/6971.html)Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), (http://www4.law.cornell.edu/uscode/42/9610.html)employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of certain environmental laws or regulations.

Under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), employees of air carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of federal air carrier safety laws or regulations.

Under the Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes-Oxley Act (SOX), employees of certain publicly traded companies, companies with certain reporting requirements with the Securities and Exchange Commission (SEC), and their contractors, subcontractors, and agents may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of the federal mail, wire, bank, or securities fraud statutes, any rule or regulation of the SEC, or any other provision of federal law relating to fraud against shareholders. 

Under the Pipeline Safety Improvement Act (PSIA), employees of owners or operators of pipeline facilities and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of federal law regarding pipeline safety or for refusing to violate such provisions.

Under the Federal Rail Safety Act (FRSA), employees of railroad carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of federal grants or other public funds intended to be used for railroad safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any federal law, rule, or regulation relating to railroad safety or security; refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties (under imminent danger circumstances); or for requesting prompt medical or first aid treatment for employment-related injuries.

Under the National Transit Systems Security Act (NTSSA), employees of public transportation agencies and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of federal grants or other public funds intended to be used for public transportation safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any federal law, rule, or regulation relating to public transportation safety or security; or refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties (under imminent danger circumstances).

Under the Consumer Product Safety Improvement Act (CPSIA), employees of manufacturers, private labelers, distributors, and retailers may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of any law or regulation within the jurisdiction of the Consumer Product Safety Commission (CPSC) to the employer, the federal government, or a state attorney general; or for refusing to perform assigned tasks that the employee reasonably believes would violate CPSC requirements.

Other Department of Labor agencies, such as the Wage and Hour Division(http://www.dol.gov/whd), the Employee Benefits Security Administration(http://www.dol.gov/ebsa), and the Mine Safety and Health Administration(http://www.msha.gov/), enforce the anti-retaliation provisions of numerous other statutes and Executive Orders. Information concerning many of these additional anti-retaliation protections is available in other sections of the Guide.

Basic Provisions/Requirements

Generally, the employee protection provisions listed above prohibit covered employers from discharging or otherwise discriminating against any employee because the employee engaged in certain activities protected by law.

The protected activities typically include:

  • Initiating a proceeding under, or for the enforcement of, any of these statutes, or causing such a proceeding to be initiated;
  • Testifying in any such proceeding;
  • Assisting or participating in any such proceeding or in any other action to carry out the purposes of these statutes; or
  • Complaining about a violation.

Many of the statutes specifically protect an employee's internal complaints to his or her employer, and it is the Department of Labor's position, as set forth in regulations, that employees who express safety or quality assurance concerns internally to their employers are protected under all of the whistleblower statutes administered by OSHA.

Employee Rights

Any employee who believes that he or she has been discriminated or retaliated 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, CAA, CERCLA, SWDA, FWPCA, SDWA, and TSCA; within 60 days under ISCA; within 90 days under AIR21, SOX, and AHERA; and within 180 days under STAA, ERA, PSIA, FRSA, NTSSA, and CPSIA.

If the Secretary of Labor has not issued a final decision within 180 days of the filing of a SOX complaint, one year of the filing of an ERA complaint, or 210 days of a STAA, FRSA, NTSSA, or CPSIA 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 under those statutes.

Notices/Posters

There are no recordkeeping, reporting, poster, or other notice requirements for employers under the Whistleblower Protection provisions administered and enforced by OSHA.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Whistleblower Protection provisions, including OSHA’s Whistleblower Program Web site(http://www.osha.gov/dep/oia/whistleblower/index.html). Compliance assistance related to the Act, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-whistleblower.htm) Web page.

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.

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, AHERA, and 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 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 other statutes listed above (except for the OSH Act, AHERA, and ISCA) may request a hearing before the Department of Labor's Office of Administrative Law Judges (OALJ)(http://www.oalj.dol.gov). Administrative Law Judges' decisions are reviewed by the Department of Labor's Administrative Review Board(http://www.dol.gov/arb), which the Secretary of Labor has designated to issue final agency decisions.

Under STAA, if OSHA finds in favor of the employee, litigation ordinarily is conducted by the Solicitor's Office, but sometimes by the private party. Under the other statutes, litigation generally is conducted by the private parties themselves. Employers and employees may seek judicial review of an adverse Administrative Review Board decision.

Under the AIR21, SOX, PSIA, FRSA, NTSSA, and CPSIA, employees who file complaints frivolously or in bad faith may be liable for attorney's fees up to $1,000.

DOL Contacts

Occupational Safety and Health Administration (OSHA) (http://www.osha.gov)
Contact OSHA(http://www.osha.gov/html/Feed_Back.html)
Tel.: 1-800-321-OSHA (1-800-321-6742); TTY: 1-877-889-5627