Subpart 7-Fair Labor Standards Act of 1938

12.701 Basic Statute. The Fair Labor Standards Act of 1938 (Act of June 30, 1938; 29 U.S.C. 201-219), as amended, provides for the establishment of minimum wage and maximum hour standards, creates a Wage and Hour Division in the Department of Labor for purposes of interpretation and enforcement (including investigations and inspections of Government contractors), prohibits oppressive child labor, and under an amendment contained in the Equal Pay Act of 1963 (77 Stat. 56, 29 U.S.C. 206), prohibits discrimination on the basis of sex. The Fair Labor Standards Act applies to all employees, unless otherwise exempted, who are engaged in (i) interstate commerce or foreign commerce, (ii) the production of goods for such commerce, or (iii) any closely related process or occupation essential to such production.

12.702 [Reserved]

12.703 Rulings on Applicability or Interpretation. Contractors or contractor employees who inquire concerning applicability or interpretation of the Fair Labor Standards Act of 1938 shall be advised that rulings concerning such matters fall within the jurisdiction of the Department of Labor and shall be given the address of the appropriate Regional Director of the Wage and Hour and Public Contracts Divisions of the Department of Labor.

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Subpart 8-Equal Employment Opportunity

12.800 Scope of Subpart. This Subpart sets forth policies and procedures for carrying out the requirements of Executive Order No. 11246 of September 24, 1965 (30 F.R. 12319), Executive Order No. 11375 of October 13,1967 (32 F.R. 14303), and the rules and regulations of the Secretary of Labor (41 CFR, Chapter 60).

12.801 Policy.

(a) Executive Orders 11246 and 11375 require that all Government contracting agencies shall include the Equal Opportunity clause in all nonexempt Government contracts and shall act to insure compliance with the clause and the regulations of the Secretary of Labor to promote the full realization of equal employment opportunity for all persons, regardless of race, color, religion, sex, or national origin.

(b) Disputes related to the Equal Opportunity Program shall be handled pursuant to the provisions of the appropriate Equal Opportunity clause in Government contracts, agreements, and subcontracts, which specify that the contractor shall comply with the rules, regulations, and relevant orders of the Secretary of Labor. Those rules, regulations, and relevant orders prescribe particular procedures for handling disputed

matters.

(e) No contract or modification thereto involving new procurement shall be entered into and no subcontract shall be approved with a company which has been declared ineligible under, or found to be in noncompliance with, the Equal Opportunity Program, in accordance with the procedures set forth in this Subpart.

12.802 Definitions. As used in this Subpart the following terms have the meanings stated below:

(a) "Administering agency" as used in the clause means any department, agency and establishment in the Executive Branch of the Government, including any wholly-owned Government corporation, which administers a program involving Federally assisted construction contracts.

(b) "Applicant" means an applicant for Federal assistance involving a construction contract, or other participant in a program involving a Federally assisted construction contract as determined by regulation of an administering agency. The term also includes such persons after they become recipients of such Federal assistance.

(c) "Construction work" means the construction, rehabilitation, alteration, conversion, extension, demolition, or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other on-site functions incidental to the actual construction.

(d) "Contract" means any Government contract or any Federally assisted construction contract.

(e) "Director, OFCC," means the Director, Office of Federal Contract Compliance, United States Department of Labor, or any person to whom he delegates authority.

(f) "Equal Opportunity clause" means the contract provisions as set forth in 12.804(a) or (b), as appropriate.

(g) "Federally assisted construction contract” means any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or

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12.802

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guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.

(h) "Government contract" means any agreement or modification thereof between any contracting officer of NASA and any person for the furnishing of supplies or services or for the use of real or personal property, including lease arrangements. The term "services," as used in this paragraph includes, but is not limited to the following services: utility, construction, transportation, research, insurance, and fund depositary. The term "Government contract" does not include (1) agreements in which the parties stand in the relationship of employer and employee, and (2) Federally assisted construction contracts, and (3) contracts for the sale of personal property by the Government, and for the sale or purchase of real property by the Government.

(i) "Order" means Parts II, III, and IV of Executive Order No. 11246 of September 24, 1965 (30 F.R. 12319), and any Executive Order amending such Order, and any other Executive order superseding such Order.

(j) "Recruiting and training agency" means any person who refers workers to any contractor or subcontractor, or who provides or supervises apprenticeship or training for employment by any contractor or subcontractor.

(k) "Site of construction" means the general physical location of any building, highway, or other change or improvement to real property which is undergoing construction, rehabilitation, alteration, conversion, extension, demolition, or repair and any temporary location or facility at which a contractor, subcontractor or other participating party meets a demand or performs a function relating to the contract or subcontract.

(1) "United States" As used herein shall include the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Panama Canal Zone, and the possessions of the United States.

(m) "Subcontract" means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of an employer and an employee): (i) for the furnishing of supplies or services or for the use of real or personal property, including lease arrangements, which, in whole or in part, is necessary to the performance of any one or more contracts; or (ii) under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken, or assumed.

(n) "Subcontractor" means any person holding a subcontract and any person who has held a subcontract subject to the Order, the term "firsttier subcontractor" refers to a subcontractor holding a subcontract with a prime contractor.

(o) "Contractor Equal Opportunity Office (CEO)" means the NASA office which is responsible for the NASA Contract Compliance Program.

(p) "Compliance Agency" means the Department or Agency designated by the Department of Labor to conduct compliance reviews and to under take such other responsibilities in connection with the administration of the Equal Employment Opportunity Program as the Department of Labor may determine to be appropriate.

12.803 Administration.

12.803

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EQUAL EMPLOYMENT OPPORTUNITY

(a) The Secretary of Labor is responsible for the administration of parts II and III of Executive Order No. 11246 and for the adoption of such rules and regulations and the issuance of such orders as he deems necessary and appropriate to achieve the purposes thereof. The Secretary of Labor has established within the Department of Labor an Office of Federal Contract Compliance (OFCC) under a Director who has been delegated authority and assigned responsibility for carrying out the responsibilities assigned to the Secretary under the Order except the power to issue rules and regulations of a general

nature.

(b) The Director, Equal Employment Opportunity Office has been designated the NASA Contract Compliance Officer (CCO). He is responsible for securing compliance with the provisions of Parts II and III of the Executive Order and with the rules. regulations and orders of the Secretary of Labor with respect to contracts entered into by NASA and for exercising overall supervision of NASA policies relating to contract compliance operations, for carrying out actions relating to the imposition of sanctions and for promulgating, within NASA, the names of prime contractors and subcontractors who have been declared ineligible for Government contracts by the Director, OFCC or by an Agency.

(c) Heads of installations are responsible for assuring that the provisions of this Subpart 8 are carried out within their respective components and for cooperating with and assisting the NASA Contract Compliance Officer and his deputy in fulfilling their responsibilities.

(d) The Director, Contractor Equal Opportunity Division. NASA Headquarters has been designated the NASA Deputy Contract Compliance Officer (DCCO) and, under policy guidance from the NASA Contract Compliance Officer (CCO). is responsible for directing operations to assure compliance by contractors and subcontractors with the provisions of the Equal Opportunity clause and the Executive Order and with the rules, regulations, and orders of the Secretary of Labor issued thereunder.

(e) Contractor Equal Opportunity (CEO) cffices have been established at both Headquarters and field installations and are responsible for the following:

(i) developing information on contractor and subcontractor compliance, including the conduct of a program of compliance reviews, the investigation of complaints and the conduct of preaward reviews as provided for in (A) the Executive Order, (B) the regulations of the Secretary of Labor, (C) this Subpart 8 and (D) such other procedures for developing information on contractor and subcontractor compliance as may be prescribed;

(ii) furnishing directly to the Headquarters, CEO office for final determination, in the case of preaward compliance reviews. their findings and recommendations as to whether the prospective contractors and known first-tier subcontractors are eligible for award;

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(111) securing compliance by contractors and subcontractors with the provisions of the Equal Opportunity clause through persuasion, negotiation and conciliation;

(iv) developing and maintaining liaison with the community and other Government and private agencies involved in equal opportunity activities:

(v) making referrals and acting as liaison appropriate compliance agency, and

with the

(vi) advising the Procurement Officer of situations which could have an impact on procurement or program objectives. 12.804 Equal Opportunity Clauses.

(a) Government Contracts. The Following clause shall included in all contracts (and modifications clause was not included in the original exempted in accordance with 12.805.

EQUAL OPPORTUNITY (MARCH 1980)

be

thereof if the contract), unless

(If during any twelve (12) month period (including the 12 months preceding the award of this contract), the Contractor has been or is awarded Federal contracts and/or subcontracts which have an aggregate value in excess of $10,000, the Contractor shall comply with (1) through (7) below. Upon request, the Contractor shall provide information necessary to determine applicability of this clause.)

the

During the performance of this contract, the Contractor agrees as follows:

(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex. or national origin. Such action shall include but not be limited to the following: Employment, upgrading, demotion, or transfer. recruitment or I recruitment advertising: layoff or termination, rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment. notices to be provided by the Contracting Officer I setting forth the provisions of this Equal Opportunity clause.

(2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.

(3) The Contractor will send to each labor union or representative of workers with which he has a collective | bargaining agreement or other contract or understanding a notice to be provided by the agency Contracting Officer. advising the

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