40 U.S.C. § 3703 — Report of violations and withholding of

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- Page 145 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3704 tory for which the contract work is done or which is providing financial assistance for the work, or to the Mayor of the District of Co- lumbia in the case of liquidated damages with- held for the use and benefit of the District. (2) REVIEW BY AGENCY HEAD OR MAYOR.—The agency head or Mayor may review the admin- istrative determination of liquidated damages. The agency head or Mayor may issue a final order affirming the determination or may rec- ommend to the Secretary of Labor that an ap- propriate adjustment in liquidated damages be made, or that the contractor or subcontractor be relieved of liability for the liquidated dam- ages, if it is found that the amount is incor- rect or that the contractor or subcontractor violated this chapter inadvertently, notwith- standing the exercise of due care by the con- tractor or subcontractor and the agents of the contractor or subcontractor. (3) REVIEW BY SECRETARY.—The Secretary shall review all pertinent facts in the matter and may conduct any investigation the Sec- retary considers necessary in order to affirm or reject the recommendation. The decision of the Secretary is final. (4) JUDICIAL ACTION.—A contractor or sub- contractor aggrieved by a final order for the withholding of liquidated damages may file a claim in the United States Court of Federal Claims within 60 days after the final order. A final order of the agency head, Mayor, or Sec- retary is conclusive with respect to findings of fact if supported by substantial evidence. (e) APPLICABILITY OF OTHER LAWS.— (1) REORGANIZATION PLAN.—Reorganization Plan Numbered 14 of 1950 (eff. May 24, 1950, 64 Stat. 1267) applies to this chapter. (2) SECTION 3145.—Section 3145 of this title ap- plies to contractors and subcontractors re- ferred to in section 3145 who are engaged in the performance of contracts subject to this chapter. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1170; Pub. L. 113–50, § 2(b), Nov. 21, 2013, 127 Stat. 578.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3703(a) ........ 40:330(a) (1st sen- tence). Pub. L. 87–581, title I, § 104, Aug. 13, 1962, 76 Stat. 358; Pub. L. 97–164, title I, § 160(a)(13), Apr. 2, 1982, 96 Stat. 48. 3703(b) ........ 40:330(a) (2d, last sentences). 3703(c) ........ 40:330(b). 3703(d) ........ 40:330(c). 3703(e) ........ 40:330(d). In subsection (a), the words ‘‘or possession’’ are omit- ted for consistency in this chapter. The words ‘‘or days’’ are omitted because of 1:1. In subsection (c), the word ‘‘Mayor’’ is substituted for ‘‘Commissioners’’ [meaning the Board of Commis- sioners of the District of Columbia] [subsequently changed to ‘‘Commissioner’’ (meaning the Commis- sioner of the District of Columbia) because of section 401 of Reorganization Plan No. 3 of 1967 (eff. Nov. 3, 1967, 81 Stat. 951)] because of section 421 of the District of Columbia Home Rule Act (Public Law 93–198, 87 Stat. 789). In subsection (d)(4), the words ‘‘United States Court of Federal Claims’’ are substituted for ‘‘United States Claims Court’’ because of section 902(b)(1) of the Fed- eral Courts Administration Act of 1992 (Public Law 102–572, 106 Stat. 4516). Editorial Notes REFERENCES IN TEXT Reorganization Plan Numbered 14 of 1950, referred to in subsec. (e)(1), is Reorg. Plan No. 14 of 1950, eff. May 24, 1950, 15 F.R. 3176, 64 Stat. 1267, which is set out in the Appendix to Title 5, Government Organization and Employees. AMENDMENTS 2013—Subsec. (b)(3). Pub. L. 113–50 substituted ‘‘Sec- retary of Labor’’ for ‘‘Comptroller General’’ in two places. § 3704. Health and safety standards in building trades and construction industry (a) CONDITION OF CONTRACTS.— (1) IN GENERAL.—Each contract in an amount greater than $100,000 that is entered into under legislation subject to Reorganization Plan Numbered 14 of 1950 (eff. May 24, 1950, 64 Stat. 1267) and is for construction, alteration, and repair, including painting and decorating, must provide that no contractor or subcon- tractor contracting for any part of the con- tract work shall require any laborer or me- chanic employed in the performance of the contract to work in surroundings or under working conditions that are unsanitary, haz- ardous, or dangerous to health or safety, as es- tablished under construction safety and health standards the Secretary of Labor prescribes by regulation based on proceedings pursuant to section 553 of title 5, provided that the pro- ceedings include a hearing similar in nature to that authorized by section 553 of title 5. (2) CONSULTATION.—In formulating standards under this section, the Secretary shall consult with the Advisory Committee created by sub- section (d). (b) COMPLIANCE.— (1) ACTIONS TO GAIN COMPLIANCE.—The Sec- retary may make inspections, hold hearings, issue orders, and make decisions based on find- ings of fact as the Secretary considers nec- essary to gain compliance with this section and any health and safety standard the Sec- retary prescribes under subsection (a). For those purposes the Secretary and the United States district courts have the authority and jurisdiction provided by sections 6506 and 6507 of title 41. (2) REMEDY WHEN NONCOMPLIANCE FOUND.— When the Secretary, after an opportunity for an adjudicatory hearing by the Secretary, es- tablishes noncompliance under this section of any condition of a contract described in— (A) section 3701(b)(1)(B)(i) or (ii) of this title, the governmental agency for which the contract work is done may cancel the con- tract and make other contracts for the com- pletion of the contract work, charging any additional cost to the original contractor; or (B) section 3701(b)(1)(B)(iii) of this title, the governmental agency which is providing the financial guarantee, assistance, or insur- ance for the contract work may withhold the guarantee, assistance, or insurance attrib- utable to the performance of the contract.