40 U.S.C. § 3702 — Work hours

Page 143 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3702 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3505 ............ 40:462(g). Aug. 2, 1954, ch. 649, title VII, § 702(g), as added Pub. L. 87–658, § 6, Sept. 14, 1962, 76 Stat. 544; Pub. L. 100–242, title V, § 524(2), Feb. 5, 1988, 101 Stat. 1939. CHAPTER 37—CONTRACT WORK HOURS AND SAFETY STANDARDS Sec. 3701. Definition and application. 3702. Work hours. 3703. Report of violations and withholding of amounts for unpaid wages and liquidated damages. 3704. Health and safety standards in building trades and construction industry. 3705. Safety programs. 3706. Limitations, variations, tolerances, and ex- emptions. 3707. Contractor certification or contract clause in acquisition of commercial items not re- quired. 3708. Criminal penalties. § 3701. Definition and application (a) DEFINITION.—In this chapter, the term ‘‘Federal Government’’ has the same meaning that the term ‘‘United States’’ had in the Con- tract Work Hours and Safety Standards Act (Public Law 87–581, 76 Stat. 357). (b) APPLICATION.— (1) CONTRACTS.—This chapter applies to— (A) any contract that may require or in- volve the employment of laborers or me- chanics on a public work of the Federal Gov- ernment, a territory of the United States, or the District of Columbia; and (B) any other contract that may require or involve the employment of laborers or me- chanics if the contract is one— (i) to which the Government, an agency or instrumentality of the Government, a territory, or the District of Columbia is a party; (ii) which is made for or on behalf of the Government, an agency or instrumen- tality, a territory, or the District of Co- lumbia; or (iii) which is a contract for work fi- nanced at least in part by loans or grants from, or loans insured or guaranteed by, the Government or an agency or instru- mentality under any federal law providing wage standards for the work. (2) LABORERS AND MECHANICS.—This chapter applies to all laborers and mechanics em- ployed by a contractor or subcontractor in the performance of any part of the work under the contract— (A) including watchmen, guards, and work- ers performing services in connection with dredging or rock excavation in any river or harbor of the United States, a territory, or the District of Columbia; but (B) not including an employee employed as a seaman. (3) EXCEPTIONS.— (A) THIS CHAPTER.—This chapter does not apply to— (i) a contract for— (I) transportation by land, air, or water; (II) the transmission of intelligence; or (III) the purchase of supplies or mate- rials or articles ordinarily available in the open market; (ii) any work required to be done in ac- cordance with the provisions of chapter 65 of title 41; and (iii) a contract in an amount that is not greater than $100,000. (B) SECTION 3702.—Section 3702 of this title does not apply to work where the assistance described in paragraph (1)(B)(iii) from the Government or an agency or instrumen- tality is only a loan guarantee or insurance. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1169; Pub. L. 109–284, § 6(14), Sept. 27, 2006, 120 Stat. 1213; Pub. L. 111–350, § 5(l)(19), Jan. 4, 2011, 124 Stat. 3852.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3701(a) ........ (no source). 3701(b)(1) .... 40:329(a) (1st sen- tence less pro- viso). Pub. L. 87–581, title I, § 103(a), (b), Aug. 13, 1962, 76 Stat. 358. 3701(b)(2) .... 40:329(a) (last sen- tence). 3701(b)(3) (A)(i), (ii). 40:329(b). 3701(b)(3) (A)(iii). 40:329(c). Pub. L. 87–581, title I, § 103(c), as added Pub. L. 103–355, title IV, § 4104(c)(1), Oct. 13, 1994, 108 Stat. 3342. 3701(b)(3)(B) 40:329(a) (1st sen- tence proviso). Subsection (a) is added for clarity. In subsection (b)(1), before clause (A), the words ‘‘ex- cept as otherwise provided’’ are omitted as unneces- sary. In subsection (b)(2), before clause (A), the words ‘‘Ex- cept as otherwise expressly provided’’ are omitted as unnecessary. In subsection (b)(3)(A)(ii), the words ‘‘Walsh-Healey Act’’ are substituted for [‘‘]Walsh-Healey Public Con- tracts Act’’ to use the correct short title of the Act. Editorial Notes REFERENCES IN TEXT The Contract Work Hours and Safety Standards Act, referred to in subsec. (a), is title I of Pub. L. 87–581, Aug. 13, 1962, 76 Stat. 357, which was classified generally to subchapter II (§ 327 et seq.) of chapter 5 of former Title 40, Public Buildings, Property, and Works, prior to repeal and reenactment as this chapter by Pub. L. 107–217, §§ 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304. Sec- tion 101 of title I of Pub. L. 87–581 was classified to sec- tion 327 of former Title 40 and was repealed and not re- enacted by Pub. L. 107–217. For complete classification of this Act to the Code, see Tables. AMENDMENTS 2011—Subsec. (b)(3)(A)(ii). Pub. L. 111–350 substituted ‘‘chapter 65 of title 41’’ for ‘‘the Walsh-Healey Act (41 U.S.C. 35 et seq.)’’. 2006—Subsec. (b)(3)(B). Pub. L. 109–284 substituted ‘‘3702’’ for ‘‘3902’’ in heading and text and ‘‘paragraph (1)(B)(iii)’’ for ‘‘subsection (a)(2)(C)’’ in text. § 3702. Work hours (a) STANDARD WORKWEEK.—The wages of every laborer and mechanic employed by any con- Page 144 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3703 tractor or subcontractor in the performance of work on a contract described in section 3701 of this title shall be computed on the basis of a standard workweek of 40 hours. Work in excess of the standard workweek is permitted subject to this section. For each workweek in which the laborer or mechanic is so employed, wages in- clude compensation, at a rate not less than one and one-half times the basic rate of pay, for all hours worked in excess of 40 hours in the work- week. (b) CONTRACT REQUIREMENTS.—A contract de- scribed in section 3701 of this title, and any obli- gation of the Federal Government, a territory of the United States, or the District of Columbia in connection with that contract, must provide that— (1) a contractor or subcontractor con- tracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall not require or permit any laborer or mechanic, in any work- week in which the laborer or mechanic is em- ployed on that work, to work more than 40 hours in that workweek, except as provided in this chapter; and (2) when a violation of clause (1) occurs, the contractor and any subcontractor responsible for the violation are liable— (A) to the affected employee for the em- ployee’s unpaid wages; and (B) to the Government, the District of Co- lumbia, or a territory for liquidated dam- ages as provided in the contract. (c) LIQUIDATED DAMAGES.—Liquidated damages under subsection (b)(2)(B) shall be computed for each individual employed as a laborer or me- chanic in violation of this chapter and shall be equal to $10 for each calendar day on which the individual was required or permitted to work in excess of the standard workweek without pay- ment of the overtime wages required by this chapter. (d) AMOUNTS WITHHELD TO SATISFY LIABIL- ITIES.—Subject to section 3703 of this title, the governmental agency for which the contract work is done or which is providing financial as- sistance for the work may withhold, or have withheld, from money payable because of work performed by a contractor or subcontractor, amounts administratively determined to be nec- essary to satisfy the liabilities of the contractor or subcontractor for unpaid wages and liq- uidated damages as provided in this section. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1169; Pub. L. 109–284, § 6(15), Sept. 27, 2006, 120 Stat. 1213.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3702(a) ........ 40:328(a). Pub. L. 87–581, title I, § 102, Aug. 13, 1962, 76 Stat. 357; Pub. L. 99–145, title XII, § 1241(a), Nov. 8, 1985, 99 Stat. 734. 3702(b) ........ 40:328(b) (words be- fore (1)), (1), (2) (1st sentence). 3702(c) ........ 40:328(b)(2) (2d sen- tence). 3702(d) ........ 40:328(b)(2) (last sen- tence). In subsection (a). the words ‘‘Notwithstanding any other provision of law’’ are omitted as unnecessary. Editorial Notes AMENDMENTS 2006—Subsec. (d). Pub. L. 109–284 substituted ‘‘To’’ for ‘‘to’’ in heading. § 3703. Report of violations and withholding of amounts for unpaid wages and liquidated damages (a) REPORTS OF INSPECTORS.—An officer or in- dividual designated as an inspector of the work to be performed under a contract described in section 3701 of this title, or to aid in the enforce- ment or fulfillment of the contract, on observa- tion or after investigation immediately shall re- port to the proper officer of the Federal Govern- ment, a territory of the United States, or the District of Columbia all violations of this chap- ter occurring in the performance of the work, together with the name of each laborer or me- chanic who was required or permitted to work in violation of this chapter and the day the viola- tion occurred. (b) WITHHOLDING AMOUNTS.— (1) DETERMINING AMOUNT.—The amount of unpaid wages and liquidated damages owing under this chapter shall be determined admin- istratively. (2) AMOUNT DIRECTED TO BE WITHHELD.—The officer or individual whose duty it is to ap- prove the payment of money by the Govern- ment, territory, or District of Columbia in connection with the performance of the con- tract work shall direct the amount of— (A) liquidated damages to be withheld for the use and benefit of the Government, terri- tory, or District; and (B) unpaid wages to be withheld for the use and benefit of the laborers and mechanics who were not compensated as required under this chapter. (3) PAYMENT.—The Secretary of Labor shall pay the amount administratively determined to be due directly to the laborers and mechan- ics from amounts withheld on account of un- derpayments of wages if the amount withheld is adequate. If the amount withheld is not ade- quate, the Secretary of Labor shall pay an eq- uitable proportion of the amount due. (c) RIGHT OF ACTION AND INTERVENTION AGAINST CONTRACTORS AND SURETIES.—If the ac- crued payments withheld under the terms of the contract are insufficient to reimburse all the la- borers and mechanics who have not been paid the wages required under this chapter, the labor- ers and mechanics, in the case of a department or agency of the Government, have the same right of action and intervention against the con- tractor and the contractor’s sureties as is con- ferred by law on persons furnishing labor or ma- terials. In those proceedings it is not a defense that the laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds. (d) REVIEW PROCESS.— (1) TIME LIMIT FOR APPEAL.—Within 60 days after an amount is withheld as liquidated damages, any contractor or subcontractor ag- grieved by the withholding may appeal to the head of the agency of the Government or terri-