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(c) The work behaviors or other cri- such person, agency, or organization is teria of employee adequacy which the in conformance with the requirements of test is intended to predict or identify this section. must be fully described; and, addition
8 5B-12.850–5 Use of validity studies. ally, in the case of rating techniques, the appraisal forms and instructions to In cases where the validity of a test the raters must be included as a part of cannot be determined pursuant to the validation evidence. Such criteria $ 5B-12.850–3 (e.g., the number of submay include measures other than actual jects is less than that required for a techwork proficiency, such as training time, nically adequate validation study, or an supervisory ratings, regularity of at- appropriate criterion measure cannot be tendance, and tenure. Whatever criteria developed), evidence from validity are used they must represent major or
studies conducted in other organizations, critical work behaviors as revealed by such as that reported in test manuals careful job analyses.
and professional literature, may be con(d) In view of the possibility of blas sidered acceptable when: (a) The studies inherent in subjective evaluations, super
pertain to jobs which are comparable visory rating techniques should be care- (i.e., have basically the same task elefully developed, and the ratings should ments), and (b) there are no major difbe closely examined for evidence of bias.
ferences in contextual variables or samIn addition, minorities or women might ple composition which are likely to sigobtain unfairly low performance cri- nificantly affect validity. terion scores for reasons other than su- 8 5B-12.850–6 Assumptions of validity. pervisors' prejudice, as when, as new
(a) The general reputation of a test, employees, they have had less opportu
its author or its publisher or casual renity to learn job skills. (e) Data must be generated and re
ports of tests utility will not be accepted sults separately reported for minority
in lieu of evidence of validity. Specifi
cally ruled out are: Assumptions of validand nonminority groups wherever technically feasible. Where a minority group
ity based on test names or descriptive is sufficiently large to constitute an iden
labels; all forms of promotional literatifiable factor in the local labor market,
ture; data bearing on the frequency of & but validation data have not been de
test's usage; testimonial statements of veloped and presented separately for
sellers, users, or consultants; and other that group, evidence of satisfactory va
nonempirical or anecdotal accounts of lidity based on other groups will be re
testing practices or testing outcomes. garded as only provisional compliance
(b) Although professional supervision with this order, pending separate vali
of testing activities may help greatly to dation of the test for the minority group
ensure technically sound and nondisin question. A test which is differentially
criminatory test usage, such involvement valid may be used in groups for which it
alone shall not be regarded as constitutis valid but not for those in which it is ing satisfactory evidence of test validity. not valid. In this regard, where a test is $ 5B-12.850-7 Continued use of tests. valid for two groups but one group characteristically obtains higher test scores
(a) A contractor may be permitted to than the other without a corresponding
continue the use of a test which is not at difference in job performance, test re
the moment fully supported by the results must be applied so as to predict the quired evidence of validity. I, for exsame probability of job success in both ample, evidence of criterion-related v&groups.
lidity in a specific setting is technically $ 5B-12.850_4 Employment agencies
feasible and required but not yet oband State employment services.
tained, the use of the test may continue Contractors utilizing the services of
providing: (a) The contractor can cite any private employment agency, State
substantial evidence of validity as deemployment agency or any other person,
scribed in g 5B-12.850–5, and (b) he has agency, or organization engaged in the in progress validation procedures which selection or evaluation of personnel,
are designed to produce, within a reasonwhich makes its selections or evaluations able time, the additional data required. or personnel wholly or partially on the It is expected also that the contractor basis of the results of any test, shall have may have to alter or suspend test cutoff available evidence that any test used by scores so that score ranges broad enough to permit the identification of criterion- upon an individual or class of individrelated validity will be obtained.
uals protected by Executive Order 11246, (b) Contractors should provide an op- as amended, who, but for this prior disportunity for retesting and reconsidera- crimination, would have been granted tion to earlier "failure" candidates who the opportunity to qualify under less have availed themselves of more training stringent selection standards previously or experience.
(c) A contractor regularly using a test 8 5B-12.850-8 Other selection techni.
which has adversely affected the opporques.
tunities of minority persons or women for Selection techniques other than tests
hire, transfer, promotion, training, or remay be improperly used so as to have the tention violated Executive Order 11246, effect of discriminating against minority as amended, unless he can demonstrate groups or women. Such techniques in- that he has validated the test pursuclude, but are not restricted to, unscored
ant to the requirements of this section. or casual interviews, unscored applica- (d) Each contractor shall maintain tion forms, and unscored personal his
and submit, upon request, such records tory and background requirements not and documents relating to the nature used uniformly as a basis for qualifying and use of tests, the validation of tests, or disqualifying applicants. Where there
and test results, as may be required under are data suggesting employment discrim
the provisions of this section and under ination, the contractor may be called the orders and directives issued by the upon to present evidence concerning the Office of Federal Contract Compliance. validity of his unscored procedures re- (e) The use of tests and other selection gardless of whether tests are also used, techniques by contractors as qualificathe evidence of validity being of the same tion standards for hire, transfer, promotypes referred to in 88 5B-12.850-2 and
tion, training, or retention shall be ex5B-12.850–3. If the contractor is unable
amined carefully for possible indications or unwilling to perform such validation of noncompliance with the requirements studies, he has the option of adjusting of Executive Order 11246, as amended. employment procedures so as to elimi- (f) A determination of noncompliance nate the conditions suggestive of employ- pursuant to the provisions of this part ment discrimination.
shall be grounds for the impositions of $ 5B-12.850—9 Compliance reviews.
sanctions under Executive Order 11246,
as amended. (a) Nothing in this section shall be interpreted as diminishing a contractor's Subpart 5B-12.187-Labor Standards in obligation under both Title VII of the
Construction Contracts Civil Rights Act of 1964 and Executive & 5B-12.18700 Scope of subpart. Order 11246, as amended, to take affirm
This subpart deals with labor standative action to ensure that applicants or
ards for construction, alteration and reemployees are treated without regard to
pair contracts as prescribed by statute race, color, religion, sex, or national
and Department of Labor regulations origin.
and supplements the regulations and (b) The principle or disparate or un
procedures set forth in Subpart 1-18.7, equal treatment must be distinguished
Labor Standards for Contracts Involving from the concept of test validation. Dis
Construction. Note that the ASPR 5B parate treatment, for example, occurs
section designations and numbers are dewhere members of a group protected by
rived from the FPR sections and are Executive Order 11246, as amended, have
parallel; for example, this $ 5B-12.18700 been denied the same opportunities for
is parallel to $ 1–18.700. hire, transfer, or promotion as have been made available to other employees or ap
8 5B-12.18702-1 Davis-Bacon Act. plicants. Those employees or applicants (a) The rates of wages and fringe who can be shown to have been denied benefits as determined by the Secretary equal treatment because of prior dis- of Labor to be currently prevalling in the criminatory practices or policies must at area of the project are the minimum least be afforded the same opportunities which can be paid to mechanics and as had existed for other employees or ap- laborers under the contract. Rates deplicants during the period of discrimina- termined under the Davis-Bacon Act tion. Thus, no new test or other em- should not be less than the minimum ployee selection standard can be imposed wage under the Fair Labor Standards Act. Any deviation from this rule shall which he is entitled under his contract be called to the attention of the Depart- or employment shall be fined not more ment of Labor for reconsideration. The than $5,000 or imprisoned not more than contractor is not prohibited from paying five years, or both. Regulations of the wage rates or fringe benefits, or both, in Secretary of Labor (29 CFR Part 3) excess of those specified. The Davis- have been issued pursuant to the CopeBacon Act does not apply to employees land Act for the purpose of aiding in such as superintendents, otice workers, the enforcement of the Act. These regutechnical and scientific workers.
lations are incorporated by reference in (b) Laborers and mechanics employed every contract for construction in exat the site, whether under the prime con- cess of $2,000 by means of the Complitract or a subcontract, must be paid at ance with Copeland Regulations clause least once a week and without deduction of Standard Form 19-A, § 1-16.901–19A. or subsequent rebate except as author- (b) Weekly Statements of Compliance. ized by statute or regulation.
No deductions may be made from total (c) Each worker must be assigned an wages earned by any employee of the authorized classification which accurate- contractor or subcontractor who is enly describes the duties he performs in gaged in the performance of a Governconformance with recognized practices ment contract unless such deductions in the construction Industry and in the are authorized under 29 CFR 3.5 or are area. For example, if a laborer performs approved by the Secretary of Labor work of a journeyman for any portion of pursuant to 29 CFR 3.6, 3.7, and 3.8. Dethe time he is employed on the contract, ductions not approved by the Secretary he must be so classified and receive the of Labor are prohibited. A weekly statewages of a journeyman for that part of ment of compliance in accordance with the time he is engaged in work at jour- the requirements of the Copeland Act neyman level. Employees performing and implementing Department of Labor work in more thar, one capacity, such as regulations must be submitted with the three hours a day as a laborer and five weekly payroll submission required in hours a day as a carpenter, must be clas- connection with contracts in excess of sified accordingly and paid the applicable $2,000. The statement may be submitted wage rate specified in the contract wage
either on Department of Labor Form schedule for the specific work performed WH-348, § 5B-16.954_348, or in the forin each classification. If the contractor mat illustrated in 29 CFR 3.3(b). fails to show dual classification in such cases, he shall be required to pay the
$ 5B-12.18702–3 Contract work hours higher rate for all hours worked.
and Safety Standards Act. (d) In addition to the basic hourly rate This Act provides that laborers and of pay, the contractor must pay the spec- mechanics shall receive compensation at ified fringe benefits either in cash to the a rate of not less than one and one-half employee, to an approved fund, plan, or times the basic rate of pay for all hours program for the benefit of the employee, worked in excess of 8 hours in each calenor by a combination thereof, or he must dar day or in excess of 40 hours in any assume (by enforceable commitment)
work week. It further provides that no the anticipated cost of providing the employer shall require any laborer or fringe benefits.
mechanic to work in surroundings or un(e) Violations of Davis-Bacon provi- der working conditions which are unsions may be grounds for termination of
sanitary, hazardous, or dangerous to his the contract.
health or safety, as determined under 8 5B-12.18702–2 Copeland (Anti-Kick
construction safety and health standards back) Act.
promulgated by the Secretary of Labor.
For violations of the excess hours provi(a) Purpose. The Copeland Anti-Kick
sions of the Act, the contractor is Uable back) Act (18 U.S.C. 874) prohibits the
for restitution of unpaid wages to the “kickback" of the employee's wages in
employee and for the payment of Liquiany manner to his employer. It states,
dated damages to the Government at a among other things, that whoever by
rate of $10 per calendar day for each force, intimidation or threat of procur- employee who was required or permitted ing dismissal from employment, or by to work overtime hours in violation of any other manner whatsoever induces the Act. Violation of the safety and any person employed on the contract to health standards provisions of the Act give up any part of the compensation to may be cause for cancellation of the con
tract. For conditions under which a con- Department at a later date, & proper adtractor may be relieved of the assessment justment would be necessary. of liquidated damages, see $ 1–18.705–13.
& 5B-12.18705_4 Apprentices. Procedures to be followed in withholding funds to cover underpayments to em- (a) Apprentices may be employed by ployees are prescribed in : 5B-12.18705-9. contractors or subcontractors on con
struction projects only when the prime $ 5B-12.18705 Administration and en
contractor has presented to the contractforcement.
ing officer written evidence that such ap$ 5B-12.18705-) General.
prentices are registered, individually, un(a) Administration and enforcement
der a bona fide apprenticeship program of labor standards provisions in con
registered with a State apprenticeship struction contracts shall be accomplished
agency which is recognized by the Bureau in accordance with the regulations of
of Apprenticeship and Training, U.S. the Department of Labor, Subpart 1-18.7
Department of Labor; or if no such recand this Subpart 5B-12.187. An Investi
ognized agency exists in a State, under gation and Enforcement Manual has & program registered directly with the been provided by the Department of La
aforesaid Bureau of Apprenticeship and bor and distributed to all regional ofices
Training. Such evidence, together with for guidance in achieving effective com
the allowable ratio of apprentices to pliance with applicable labor standards.
journeymen and the wage rates appli(b) The contracting officer is respon
cable in the area of the project, shall be sible for the inclusion of the required
submitted by the contractor prior to labor standards provisions in construc
using apprentices on the project. tion contracts and for making reason
(b) Whenever the payrolls indicate able efforts to insure compliance there
that a contractor has classified employees with.
as apprentices without complying with
the foregoing requirements, the con$ 5B-12.18705-3 Additional classifica
tractor shall be required to pay such tions.
employees at the journeymen's rates ap(a) When a classification for laborers plicable to the classification of work and mechanics required in the perform- they actually performed. ance of the contract work is not listed in (c) Whenever any bona fide apprenthe wage determination incorporated in tices are employed in excess of the the contract, the contractor shall submit allowable ratio, they will be er.titled to a proposed classification or reclassifica- journeymen's rates for each day of distion and wage rate, plus fringe benefits, proportionate employment on the projif any, to the contracting officer on GSA ect. Allowances should be made for Form 2428, Request for Authorization of journeymen absenteeism due to circumAdditional Classification(s), Rate(s), stances beyond the control of the Fringe Benefit(s), illustrated at $ 5B- contractor. 16.950–2428, together with data to sub- (d) Apprentice employment data must stantiate the establishment of the pro- be furnished with the first payroll on posed classification or reclassification which each apprentice appears. The payand rate. For purposes of establishing roll must show the period of training prevailing rates, information reflecting and approved wage rate of each apprenwage rates and classifications employed tice employed. on similar projects in the vicinity may 8 5B-12.18705–6 Payrolls and statebe obtained from the contractors' as
ments. sociations, labor organizations and other contractors.
(a) Forms of payrolls. Payrolls are not (b) When the contracting officer indi
required to be submitted on any particu
lar form, except that the form used must cates his approval on GSA Form 2428, it
be such as to permit verification that may be assumed, for the purpose of
the contractor or subcontractor is, in checking payrolls, that the additional
fact, complying with the labor requireclassification(s) and rate(s) are satisfactory unless GSA is otherwise advised
ments of the contract. The Department within 30 days from receipt of a report
of Labor has developed a model payroll by the Department of Labor in response
form, WH–347 (formerly SOL—184), for to any questions referred to the Depart- optional use by contractors and subconment of Labor by GSA. Should a correc- tractors (see $ 5B-16.954–347). This tion or objection be received from the form, which meets all the payroll re
quirements of the labor standards pro- (4) Work in excess of eight hours in visions of the contract, may be purchased any calendar day or forty hours in any in quantity at nominal cost at the Gov- calendar week, whichever is greater, ernment Printing Office, or it may be must be paid for at the overtime rate of used as a guide in obtaining payroll not less than one and one-half times forms from other sources. It is believed it the basic hourly rate (see § 1-12.301). will be useful to contractors for general Fringe benefits are excluded in computrecordkeeping purposes and its use is en- ing overtime rates. Cash in lieu of couraged. These forms are not supplied fringes is paid at the straight time rate by the Government, but samples will be and added after computation of time and furnished in limited numbers for the one-half of the basic rate. guidance of contractors and subcon- (5) Payment of specified rate is retractors. In the event the contractor uses quired; there will be no consideration of a form of his own choosing, care must be an average rate. Payment for the first taken to assure that all required infor- eight hours at a rate of wage less than mation is included on the payrolls and that specified is not permissible even that no unauthorized deductions have though the payment of double time for been made.
overtime, results in total payment equal (b) Submission of payrolls and state- to that required by the contract. ments of compliance. Payrolls and state
(6) Gross earnings shown on payrolls ments of compliance are required to be must total the number of hours worked submitted weekly within seven days after
multiplied by the approved hourly rate the regular payment date of the payroll
of pay, plus fringe benefits if paid in week covered. The contractor is respon- cash. sible for assuring that all payrolls and
(7) All classifications listed on the statements are submitted, including
payrolls must conform to the classificathose of all subcontractors. The state
tions listed in the wage determination ment required by the Copeland Act ap
of the Secretary of Labor and additional plies to laborers, mechanics and their
approved classifications, if any. immediate supervisors (29 CFR 3.3 (a)),
(8) Employees must be properly classiwhereas supervisors, foremen, and tech
fied according to the type of work acnical personnel are not required to be
tually performed. As deemed necessary, shown on the payrolls.
sampling for compliance may be per(c) Examination of payrolls and state
formed through the use of progress ments of compliance. (1) Contractors'
reports to compare the type of work perpayrolls must contain all data required
formed during a certain period with for verification that the labor require
classifications listed on payrolls for ments of the contract are being met. This
corresponding periods. will include name of each employee,
(9) Operators of rented equipment classification, wage rate and fringe bene
must be paid not less than the specified fits, hours worked each day and during
rates even though their srevices are inthe payroll week, total earned, itemized
cluded in the rental rates. withholdings, and total paid each em
(10) Evidence of registration of apployee.
prentices in approved apprenticeship pro(2) Copies of weekly payrolls must be
grams must accompany the first payroll submitted promptly and must be com
on which the apprentice appears. piete. Weekly statements of compliance
(11) The number of laborers, helpers to meet the requirements of 29 CFR 3.3 (b) and the needs resulting from the
and apprentices employed must not be
disproportionate to the number of jouramendment of the Davis-Bacon Act to include fringe benefits, must be sub
neymen employed. The permissible ratio
of apprentices to journeymen is normally mitted, either on the payroll form itself (reverse of WH-347), by executing and
covered in apprenticeship agreements for
the area involved. attaching Form WH-348 to the payroll, or other attachment which complies with
(d) Correction of payrolls. GSA Form the WH-347 or 348 format (see $ 5B
1995, Return of Payroll Document for 16.954-347 and -348).
Correction, illustrated at $ 5B-16.950–
1995, shall be used to return payroll docu(3) Hourly wage rates and fringe benefits paid in cash must be not less than
ments which need minor corrections. those prescribed by the determination of Payrolls that indicate violations of the the Secretary of Labor included in the contract requirements shall not be recontract.