(c) The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal forms and instructions to the raters must be included as a part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance, and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses.

(d) In view of the possibility of bias inherent in subjective evaluations, supervisory rating techniques should be carefully developed, and the ratings should be closely examined for evidence of bias. In addition, minorities or women might obtain unfairly low performance criterion scores for reasons other than supervisors' prejudice, as when, as new employees, they have had less opportunity to learn job skills.

(e) Data must be generated and results separately reported for minority and nonminority groups wherever technically feasible. Where a minority group is sufficiently large to constitute an identifiable factor in the local labor market, but validation data have not been developed and presented separately for that group, evidence of satisfactory validity based on other groups will be regarded as only provisional compliance with this order, pending separate validation of the test for the minority group in question. A test which is differentially valid may be used in groups for which it is valid but not for those in which it is not valid. In this regard, where a test is valid for two groups but one group characteristically obtains higher test scores than the other without a corresponding difference in job performance, test results must be applied so as to predict the same probability of job success in both groups.

§ 5B-12.850-4 Employment

agencies

and State employment services. Contractors utilizing the services of any private employment agency, State employment agency or any other person, agency, or organization engaged in the selection or evaluation of personnel, which makes its selections or evaluations or personnel wholly or partially on the basis of the results of any test, shall have available evidence that any test used by

such person, agency, or organization is in conformance with the requirements of this section.

§ 5B-12.850-5 Use of validity studies.

In cases where the validity of a test cannot be determined pursuant to § 5B-12.850-3 (e.g., the number of subjects is less than that required for a technically adequate validation study, or an appropriate criterion measure cannot be developed), evidence from validity studies conducted in other organizations, such as that reported in test manuals and professional literature, may be considered acceptable when: (a) The studies pertain to jobs which are comparable (i.e., have basically the same task elements), and (b) there are no major differences in contextual variables or sample composition which are likely to significantly affect validity.

§ 5B-12.850-6 Assumptions of validity.

(a) The general reputation of a test, its author or its publisher or casual reports of tests utility will not be accepted in lieu of evidence of validity. Specifically ruled out are: Assumptions of validity based on test names or descriptive labels; all forms of promotional literature; data bearing on the frequency of a test's usage; testimonial statements of sellers, users, or consultants; and other nonempirical or anecdotal accounts of testing practices or testing outcomes.

(b) Although professional supervision of testing activities may help greatly to ensure technically sound and nondiscriminatory test usage, such involvement alone shall not be regarded as constituting satisfactory evidence of test validity. § 5B-12.850-7 Continued use of tests.

(a) A contractor may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, evidence of criterion-related validity in a specific setting is technically feasible and required but not yet obtained, the use of the test may continue providing: (a) The contractor can cite substantial evidence of validity as described in § 5B-12.850-5, and (b) he has in progress validation procedures which are designed to produce, within a reasonable time, the additional data required. It is expected also that the contractor may have to alter or suspend test cutoff scores so that score ranges broad enough

to permit the identification of criterionrelated validity will be obtained.

(b) Contractors should provide an opportunity for retesting and reconsideration to earlier "failure" candidates who have availed themselves of more training or experience.

§ 5B-12.850-8 Other selection techniques.

Selection techniques other than tests may be improperly used so as to have the effect of discriminating against minority groups or women. Such techniques include, but are not restricted to, unscored or casual interviews, unscored application forms, and unscored personal history and background requirements not used uniformly as a basis for qualifying or disqualifying applicants. Where there are data suggesting employment discrimination, the contractor may be called upon to present evidence concerning the validity of his unscored procedures regardless of whether tests are also used, the evidence of validity being of the same types referred to in §§ 5B-12.850-2 and 5B-12.850-3. If the contractor is unable or unwilling to perform such validation studies, he has the option of adjusting employment procedures so as to eliminate the conditions suggestive of employment discrimination.

(a) Nothing in this section shall be interpreted as diminishing a contractor's obligation under both Title VII of the Civil Rights Act of 1964 and Executive Order 11246, as amended, to take affirmative action to ensure that applicants or employees are treated without regard to race, color, religion, sex, or national origin.

(b) The principle or disparate or unequal treatment must be distinguished from the concept of test validation. Disparate treatment, for example, occurs where members of a group protected by Executive Order 11246, as amended, have been denied the same opportunities for hire, transfer, or promotion as have been made available to other employees or applicants. Those employees or applicants who can be shown to have been denied equal treatment because of prior discriminatory practices or policies must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed

upon an individual or class of individuals protected by Executive Order 11246, as amended, who, but for this prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.

(c) A contractor regularly using a test which has adversely affected the opportunities of minority persons or women for hire, transfer, promotion, training, or retention violated Executive Order 11246, as amended, unless he can demonstrate that he has validated the test pursuant to the requirements of this section.

(d) Each contractor shall maintain and submit, upon request, such records and documents relating to the nature and use of tests, the validation of tests, and test results, as may be required under the provisions of this section and under the orders and directives issued by the Office of Federal Contract Compliance.

(e) The use of tests and other selection techniques by contractors as qualification standards for hire, transfer, promotion, training, or retention shall be examined carefully for possible indications of noncompliance with the requirements of Executive Order 11246, as amended.

(f) A determination of noncompliance pursuant to the provisions of this part shall be grounds for the impositions of sanctions under Executive Order 11246, as amended.

Subpart 5B-12.187-Labor Standards in Construction Contracts

Act. Any deviation from this rule shall be called to the attention of the Department of Labor for reconsideration. The contractor is not prohibited from paying wage rates or fringe benefits, or both, in excess of those specified. The DavisBacon Act does not apply to employees such as superintendents, office workers, technical and scientific workers.

(b) Laborers and mechanics employed at the site, whether under the prime contract or a subcontract, must be paid at least once a week and without deduction or subsequent rebate except as authorized by statute or regulation.

(c) Each worker must be assigned an authorized classification which accurately describes the duties he performs in conformance with recognized practices in the construction industry and in the area. For example, if a laborer performs work of a journeyman for any portion of the time he is employed on the contract, he must be so classified and receive the wages of a journeyman for that part of the time he is engaged in work at journeyman level. Employees performing work in more thar. one capacity, such as three hours a day as a laborer and five hours a day as a carpenter, must be classified accordingly and paid the applicable wage rate specified in the contract wage schedule for the specific work performed in each classification. If the contractor fails to show dual classification in such cases, he shall be required to pay the higher rate for all hours worked.

(d) In addition to the basic hourly rate of pay, the contractor must pay the specified fringe benefits either in cash to the employee, to an approved fund, plan, or program for the benefit of the employee, or by a combination thereof, or he must assume (by enforceable commitment) the anticipated cost of providing the fringe benefits.

(e) Violations of Davis-Bacon provisions may be grounds for termination of the contract.

§ 5B-12.18702-2 Copeland (Anti-Kickback) Act.

(a) Purpose. The Copeland Anti-Kickback) Act (18 U.S.C. 874) prohibits the "kickback" of the employee's wages in any manner to his employer. It states, among other things, that whoever by force, intimidation or threat of procuring dismissal from employment, or by any other manner whatsoever induces any person employed on the contract to give up any part of the compensation to

which he is entitled under his contract or employment shall be fined not more than $5,000 or imprisoned not more than five years, or both. Regulations of the Secretary of Labor (29 CFR Part 3) have been issued pursuant to the Copeland Act for the purpose of aiding in the enforcement of the Act. These regulations are incorporated by reference in every contract for construction in excess of $2,000 by means of the Compliance with Copeland Regulations clause of Standard Form 19-A, § 1–16.901–19A.

(b) Weekly Statements of Compliance. No deductions may be made from total wages earned by any employee of the contractor or subcontractor who is engaged in the performance of a Government contract unless such deductions are authorized under 29 CFR 3.5 or are approved by the Secretary of Labor pursuant to 29 CFR 3.6, 3.7, and 3.8. Deductions not approved by the Secretary of Labor are prohibited. A weekly statement of compliance in accordance with the requirements of the Copeland Act and implementing Department of Labor regulations must be submitted with the weekly payroll submission required in connection with contracts in excess of $2,000. The statement may be submitted either on Department of Labor Form WH-348, § 5B-16.954-348, or in the format illustrated in 29 CFR 3.3(b).

§ 5B-12.18702-3 Contract work hours and Safety Standards Act.

This Act provides that laborers and mechanics shall receive compensation at a rate of not less than one and one-half times the basic rate of pay for all hours worked in excess of 8 hours in each calendar day or in excess of 40 hours in any work week. It further provides that no employer shall require any laborer or mechanic to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards promulgated by the Secretary of Labor. For violations of the excess hours provisions of the Act, the contractor is liable for restitution of unpaid wages to the employee and for the payment of liquidated damages to the Government at a rate of $10 per calendar day for each employee who was required or permitted to work overtime hours in violation of the Act. Violation of the safety and health standards provisions of the Act may be cause for cancellation of the con

(a) Administration and enforcement of labor standards provisions in construction contracts shall be accomplished in accordance with the regulations of the Department of Labor, Subpart 1-18.7 and this Subpart 5B-12.187. An Investigation and Enforcement Manual has been provided by the Department of Labor and distributed to all regional offices for guidance in achieving effective compliance with applicable labor standards.

(b) The contracting officer is responsible for the inclusion of the required labor standards provisions in construction contracts and for making reasonable efforts to insure compliance therewith.

§ 5B-12.18705-3 Additional classifications.

(a) When a classification for laborers and mechanics required in the performance of the contract work is not listed in the wage determination incorporated in the contract, the contractor shall submit a proposed classification or reclassification and wage rate, plus fringe benefits, if any, to the contracting officer on GSA Form 2428, Request for Authorization of Additional Classification(s), Rate(s), Fringe Benefit (s), illustrated at § 5B16.950-2428, together with data to substantiate the establishment of the proposed classification or reclassification and rate. For purposes of establishing prevailing rates, information reflecting wage rates and classifications employed on similar projects in the vicinity may be obtained from the contractors' associations, labor organizations and other contractors.

(b) When the contracting officer indicates his approval on GSA Form 2428, it may be assumed, for the purpose of checking payrolls, that the additional classification(s) and rate(s) are satisfactory unless GSA is otherwise advised within 30 days from receipt of a report by the Department of Labor in response to any questions referred to the Department of Labor by GSA. Should a correction or objection be received from the

66-008-76- 41

Department at a later date, a proper adjustment would be necessary.

§ 5B-12.18705-4 Apprentices.

(a) Apprentices may be employed by contractors or subcontractors on construction projects only when the prime contractor has presented to the contracting officer written evidence that such apprentices are registered, individually, under a bona fide apprenticeship program registered with a State apprenticeship agency which is recognized by the Bureau of Apprenticeship and Training, U.S. Department of Labor; or if no such recognized agency exists in a State, under a program registered directly with the aforesaid Bureau of Apprenticeship and Training. Such evidence, together with the allowable ratio of apprentices to journeymen and the wage rates applicable in the area of the project, shall be submitted by the contractor prior to using apprentices on the project.

(b) Whenever the payrolls indicate that a contractor has classified employees as apprentices without complying with the foregoing requirements, the contractor shall be required to pay such employees at the journeymen's rates applicable to the classification of work they actually performed.

(c) Whenever any bona fide apprentices are employed in excess of the allowable ratio, they will be entitled to journeymen's rates for each day of disproportionate employment on the project. Allowances should be made for journeymen absenteeism due to circumstances beyond the control of the contractor.

(d) Apprentice employment data must be furnished with the first payroll on which each apprentice appears. The payroll must show the period of training and approved wage rate of each apprentice employed.

§ 5B-12.18705-6 Payrolls and state

ments.

(a) Forms of payrolls. Payrolls are not required to be submitted on any particular form, except that the form used must be such as to permit verification that the contractor or subcontractor is, in fact, complying with the labor requirements of the contract. The Department of Labor has developed a model payroll form, WH-347 (formerly SOL-184), for optional use by contractors and subcontractors (see 5B-16.954-347). This form, which meets all the payroll re

quirements of the labor standards provisions of the contract, may be purchased in quantity at nominal cost at the Government Printing Office, or it may be used as a guide in obtaining payroll forms from other sources. It is believed it will be useful to contractors for general recordkeeping purposes and its use is encouraged. These forms are not supplied by the Government, but samples will be furnished in limited numbers for the guidance of contractors and subcontractors. In the event the contractor uses a form of his own choosing, care must be taken to assure that all required information is included on the payrolls and that no unauthorized deductions have been made.

(b) Submission of payrolls and statements of compliance. Payrolls and statements of compliance are required to be submitted weekly within seven days after the regular payment date of the payroll week covered. The contractor is responsible for assuring that all payrolls and statements are submitted, including those of all subcontractors. The statement required by the Copeland Act applies to laborers, mechanics and their immediate supervisors (29 CFR 3.3 (a)), whereas supervisors, foremen, and technical personnel are not required to be shown on the payrolls.

(c) Examination of payrolls and statements of compliance. (1) Contractors' payrolls must contain all data required for verification that the labor requirements of the contract are being met. This will include name of each employee, classification, wage rate and fringe benefits, hours worked each day and during the payroll week, total earned, itemized withholdings, and total paid each employee.

(2) Copies of weekly payrolls must be submitted promptly and must be compiete. Weekly statements of compliance to meet the requirements of 29 CFR 3.3 (b) and the needs resulting from the amendment of the Davis-Bacon Act to include fringe benefits, must be submitted, either on the payroll form itself (reverse of WH-347), by executing and attaching Form WH-348 to the payroll, or other attachment which complies with the WH-347 or 348 format (see § 5B16.954-347 and -348).

(3) Hourly wage rates and fringe benefits paid in cash must be not less than those prescribed by the determination of the Secretary of Labor included in the contract.

(4) Work in excess of eight hours in any calendar day or forty hours in any calendar week, whichever is greater, must be paid for at the overtime rate of not less than one and one-half times the basic hourly rate (see § 1-12.301). Fringe benefits are excluded in computing overtime rates. Cash in lieu of fringes is paid at the straight time rate and added after computation of time and one-half of the basic rate.

(5) Payment of specified rate is required; there will be no consideration of an average rate. Payment for the first eight hours at a rate of wage less than that specified is not permissible even though the payment of double time for overtime, results in total payment equal to that required by the contract.

(6) Gross earnings shown on payrolls must total the number of hours worked multiplied by the approved hourly rate of pay, plus fringe benefits if paid in cash.

(7) All classifications listed on the payrolls must conform to the classifications listed in the wage determination of the Secretary of Labor and additional approved classifications, if any.

(8) Employees must be properly classified according to the type of work actually performed. As deemed necessary, sampling for compliance may be performed through the use of progress reports to compare the type of work performed during a certain period with classifications listed on payrolls for corresponding periods.

(9) Operators of rented equipment must be paid not less than the specified rates even though their srevices are inIcluded in the rental rates.

(10) Evidence of registration of apprentices in approved apprenticeship programs must accompany the first payroll on which the apprentice appears.

(11) The number of laborers, helpers and apprentices employed must not be disproportionate to the number of journeymen employed. The permissible ratio of apprentices to journeymen is normally covered in apprenticeship agreements for the area involved.

(d) Correction of payrolls. GSA Form 1995, Return of Payroll Document for Correction, illustrated at § 5B-16.9501995, shall be used to return payroll documents which need minor corrections. Payrolls that indicate violations of the contract requirements shall not be returned.