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Wage and Hour Division (WHD)

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FOH Field Operations Handbook
arrowChapter 64 Employment of Workers with Disabilities at Special minimum Wages under Section 14(c)
arrowSection 64k Addendum

Section 64k02: Sample Letters

Sample appointment letter. The following is an example of an appointment letter that INVs can adapt depending on the particular assignment. FOH 64f01 directs INVs to send section 14(c) employers an appointment letter prior to visiting the establishment to ensure the presence of the executive director and to facilitate the examination of necessary documentation.

SAMPLE APPOINTMENT LETTER

March 21, 2000

Workshop Director
XYZ Vocational Training Center
222 E. Oak Street
Harbor, Pennsylvania 19096

Dear Sir/Madam:

The Wage and Hour Division is responsible for the administration and enforcement of a number of Federal laws involving labor standards. These include the Fair Labor Standards Act (FLSA) and the McNamara-O'Hara Service Contract Act (SCA). The Division has specific responsibilities under Section 14(c) of the FLSA, which provides for the employment of workers with disabilities at special minimum wages that are less than the Federal minimum wage. We also have certain responsibilities under the Davis Bacon and Related Acts, the Contract Work Hour and Safety Standards Act, the Family and Medical Leave Act, and the Immigration Reform and Control Act of 1986 (IRCA).

This is to advise you that I will call on you on Tuesday, April 11, 2000 at 9:00 a.m. at the above address. The purpose of my visit will be to conduct an investigation to determine your firm's level of compliance with the Fair Labor Standards Act and other appropriate Acts. As part of the investigation, I will tour your establishment, including any work centers, and you may be asked to replicate time studies to verify the accuracy of the special minimum wages paid to clients performing covered work. Every effort will be made to conduct this assignment expeditiously and with a minimum of inconvenience to you and your employees.

Please prepare the following information so that it is available during the investigation:

  1. Names and addresses of the President and Board of Directors or Corporate Officers;
  2. A listing of all branch establishments or supported employment sites;
  3. Copies of the financial statements for past three years. If you are a for-profit operation, a list of your gross annual dollar volume of sales for the past three years;
  4. A list of all staff members which reflects each employee's hourly rate or salary, descriptive job title, and whether you consider that employee exempt from overtime;
  5. Payroll and time records, for both the staff and clients for the past two years, including a copy of the most recently completed payroll;
  6. Documents substantiating the type and severity of the disability(s) of each worker who is paid a special minimum wage;
  7. Time studies documenting standards used to establish piece rates and/or hourly commensurate wage rates;
  8. Evaluations and documentation used to determine the special minimum wages paid employees on an hourly basis (such as the quality standards used);
  9. Prevailing wage survey data for the last two years;
  10. If you employ patient workers, please provide the following information:
    • Whether your institution is for-profit or not-for-profit;
    • Whether your institution is public or private;
    • The primary disability group you serve;
    • The total number of patients in the institution at the present time;
    • The number of patients who are also employees of the institution;
  11. Contract information:
    • If you have, or have had SCA contracts or subcontracts in the last two years, please provide the following information for each contract:
      • Name and address of contractor;
      • Name of prime contractor if work was/is performed as a subcontractor;
      • Name and address of contracting agency;
      • Contracting officer name and phone number;
      • Brief description of work;
      • Number of workers employed on the contract;
      • Period of contract performance;
      • Dollar amount of contract;
      • Copies of any applicable SCA wage determinations;
    • If you have, or have had in the last two years, production contracts or subcontracts, please provide the following additional information for each contract:
      • Name and address of customer;
      • Geographic source of raw materials or component parts;
      • Final geographic destinations of goods produced;
  12. Birth dates for all employees under age 19 who worked during the past 24 months;
  13. Federal Employer Identification Number (FEIN);
  14. Employment Eligibility Verification forms, I-9s, for all current employees hired after November, 1986 [INVs will follow current FOH guidelines regarding the reviewing of I-9s when deciding to add this requirement].

Thank you in advance for your assistance in this matter. Please do not hesitate to contact me at (717) 445-3030 should you have any questions.

Sincerely,

Jordan Smith
Investigator


Letter of Findings. A letter of findings shall be sent to the employer at the conclusion of each 14(c) investigation to advise the employer in writing of the issues discussed and agreements reached during the final conference (see FOH 64h01(e)).

  1. The letter of findings should:
    • State the period of investigation;
    • List violations found for staff employees separately from those for clients;
    • List the violations by act, specify the types of violation under each act, and mention the number of employees affected and the amount of back wages due;
    • Provide the citation in Regulations Part 525, or other appropriate regulation, for each of the violations found;
    • Include a section of comments and recommendations to assist the employer's future compliance;
    • When appropriate, (for example when the INV still has some questions regarding the employer's efforts to come into compliance), the employer shall be asked to respond to the letter of findings. He or she should be directed to send a letter to the DO - within 30 days of the date of the letter of findings - describing the steps/changes that have been taken since the conclusion of the investigation to come into compliance and to assure compliance for the future.
  2. Sample letter of findings.

[Date]

[Center Director & address]

Dear:

Thank you for your courtesy and consideration extended to our Investigator [Inv first and last name] in his/her recent investigation of your work center [or institution, establishment, etc.]. The investigation covered both staff members and workers with disabilities employed at subminimum wages by the [insert name of establishment] at [specify exactly all locations included in the investigation]. The investigation period was [date] to [date].

The investigation was to determine your compliance with the Fair Labor Standards Act (FLSA) [add the Service Contract Act or Public Contracts Act if applicable to this investigation] and particularly with the terms and conditions of your subminimum wage certificate(s) issued under the FLSA. These terms and conditions are described in Regulations 29 CFR Part 525, a copy of which was previously provided to you.

The investigation report shows that you failed to comply with the FLSA as follows: [be specific and accurate, obtaining input from Regional Section 14 Team Leader as needed. List violations involving SCA and/or PCA in separate sections of the letter. Include BWs due to the number of employees under each section. Segregate violations involving staff from violations involving workers paid special minimum wages under Section 14(c)]. The following are examples of possible violations that might be encountered:

  1. The employer failed to use the proper prevailing wage rate for most of the contract work performed during the investigation period. According to information provided, either the statutory minimum wage was used as the prevailing wage or only one firm was contacted for prevailing wage information. To compute back wages, the firm conducted a prevailing wage survey for contract work and recalculated the piece rates that should have been paid. The difference between the piece rate paid and the new, correct piece rate was multiplied by the total pieces produced by each consumer. Back wages found due were $2204 for 289 clients.
  2. Firm failed to count as hours worked all compensable travel time and down time for employees. Many employees performed contract work at the facility prior to being transported to a community enclave. Back wages were calculated by comparing a regular rate, developed for a sample two-month period of time (6/98 - 8/98), to the quarterly average used previously by the firm to pay for these hours. Firm multiplied the figures computed for the sample period, by 8 quarters, for all employees owed back wages. Back wages found due were $6,706 for 299 employees.
  3. Firm failed to pay employees placed at Techno Industries (a community based enclave) wages based on those paid experienced Techno Industries employees. Back wages were calculated by multiplying the difference between the corrected wage and the wage paid by the total hours clients worked at the enclave. Back wages back wages found due were $9,605 for 24 employees

The report indicates that on [date of final conference], you met with Investigator [INV last name], [list name and title of those present at final conference] at [list where final conference was held]. At that meeting, it is my understanding that you agreed to full compliance with the FLSA [add other acts as applicable] and the terms and conditions of your certificate(s). Specifically you agreed to [be specific and accurate, obtaining input from Regional Section 14 Team Leader as needed]. The following are examples of employer commitments:

  1. You agreed to compute prevailing wage rates, as often as required but not less than every 12 months, in accordance with the provisions of Regulations 29 CFR Part 525.10.
  2. You agreed to record and compensate all travel time and down time which properly qualify as "hours worked" in accordance with Regulations 29 CFR Part 785.
  3. You agreed to pay all clients placed at the Techno Industries enclave site commensurate wages based upon the prevailing wages paid experienced workers as defined in Regulations 29 CFR Part 525.3k.

[Here request confirming letter from employer verifying steps taken to comply, if DO deems necessary. See FOH 64h01(e)(2)]

You also agreed to [describe here BW situation - paid, not paid yet with payment date, etc. and any specific follow up action needed, with deadlines].

In consideration of your agreement to comply and pay the backwages due, I plan to administratively close the file upon your submission of proof of payment of the back wages.

[Insert as needed] We would like to direct your attention to Section 16(e) of the FLSA and Regulations 29 CFR Part 578. As you will note, Section 16(e) provides for the assessment of a civil money penalty for any repeated or willful violations of Sections 6 or 7, in an amount not to exceed $1,000 for each such violation. No penalty is being assessed as a result of this investigation. If at any time in the future your firm is found to have violated the monetary provisions of the FLSA, it will be subject to such penalties. A copy of Regulations, Part 578 is enclosed for your reference.

If you have any questions about the investigation or any aspect of the FLSA, please contact Investigator [INV last name] or me at the number shown above.

Sincerely,

[name of DD]
District Director

CC: President of the Board of Directors

Enclosure: Part 578 [Insert as needed]

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