« PreviousContinue »
standard may be appropriate if the new standard is the median wage rate or if the shift can be supported by available survey and other information concerning wage-level changes in the area.
346 Slotted rate as that prevailing. If no survey data are available for an occupational class specified in an incoming SF 98, but a relevant survey does report data for a class the duties and skill requirements of which are comparable to those of service employees to be employed on a contemplated contract, the Branch may slot the specified class in terms of the survey class for which data are available. It bases comparability or equivalence on such standard references as the Dictionary of Occupational Titles and CFWS definitions of blue-collar occupational classes or on information obtained from the contracting officer and incumbent contractor. Examples of wage determinations based on the slotting principle are those for grounds-maintenance laborer and for mess attendant, which are based on survey data for janitor, porter, cleaner. The Branch typically slots rates in a wage determination issued to cover a relatively large number of contracts or one in response to an incoming SF 98 that specifies a large number of service employees. Conversely, the Branch does not customarily slot rates in existing wage determinations to affect the addition of an occupational class, but it may follow this practice to meet a special request or need. 29 CFR Part 4 provides for conforming missing wage rates and it is concluded as a general principle that the interested parties (contracting officer, contractor, and employees) are in a better position to determine reasonable and equitable wage relationships.
347 Prevailing rate determined by adding negotiated wage increase to survey rate.-In some cases, the Branch may consider the survey rate to have prevailed when the survey was conducted and interpret negotiated increases subsequent to the survey as increases in the minimum prevailing wage rate. Accordingly, where information is readily available that the wage level of a class reported by the survey has increased-for example, pursuant to a collective bargaining agreement-the Branch may consider the effect of that increase on the rate reported by the survey. In such a case, the Branch may either add the negotiated increase to the reported rate to determine the prevailing rate or it may allot proportionate weight to the negotiated increase in appraising its effect on the prevailing wage rate.
348 Survey characteristics of adopted rate.
(a) Cross-industry occupational wage data.-For most survey-based wage determinations, the Branch relies on surveys of establishments representing both the manufacturing and nonmanufacturing sectors of the economy, which may report data for one or more major sectors. Notwithstanding the availability of data specifically pertinent to the nonmanufacturing sector-which encompasses the service industry division-the Branch normally adopts as prevailing that mean or median wage reflecting cross-industry wage levels. The cross-industry principle recognizes that a "janitor" is a "janitor" regardless of the industrial sector in which employed. This approach gives proportionate weight to the employment of comparable service-type employees in all industrial sectors surveyed.
(6) Data Differentiated by sex.When basing a wage determination on a BLS survey, the Branch combines data for men and women workers in laundry, and food service employment; for employment in maintenance, powerplant, custodial, and material-movement occupational classes, the Branch relies on data for men only, since these are normally the only occupational data published. If the survey reports data combined by sex, as well as separately for each sex, the Branch as a rule adopts a rate based on the combined data. If the survey reports only separate data for each sex and fails to report combined data for the occupational class, the Branch adopts a rate shown for male workers, instead of synthesizing the differentiated rates into one combined rate, because a wage differential favoring men employees often indicates the existence of a lower wage standard for women employees. Since wage discrimination by sex is unlawful according to the Equal Pay Act (section 6(d), Fair Labor Standards Act), the Branch in determining the prevailing rate considers it inappropriate to take account of substantially lower wage levels for women when these are separately reported.
(c) Hourly basis of the determined rate. The determined rate is an hourly rate. If the rate shown in a survey is expressed as other than an hourly rate for example, as a weekly or monthly salary-the Branch reduces that rate to its hourly equivalent, based on the number of hours intended to be covered by the compensation. If the Branch cannot determine the actual number of hours corered, it computes the rate by applying a standard 8-hour day and 40-hour week.
(d) Rounding procedure. When the Branch computes an 'hourly equivalent, it rounds to the nearest half-cent, yielding no more significant digits in the quotient than the lesser of the number of significant digits in either the dividend or the divisor.
350 Nonsurvey-based wage determinations:
Prevailing standard.—The Branch considers a particular wage rate to prevail for a specified occupational class if that or a higher rate is paid to a majority of such workers in the locality. In the absence of survey data, the Branch must ordinarily rely on information-obtained from employee or employer organizations—which establishes that not less than the rate determined to prevail is paid to at least a majority of workers in the specified class.
351 Currently prevailing wage rate.-A wage determination contains only the rate or rates in effect at the time it was issued, notwithstanding available information to support prospective changes in a published rate at some future date.
352-Locality.-Unlike a survey-based determination, one based on alternative data typically defines locality in terms of the corresponding area of jurisdiction, for example, the area applicable to a collective bargaining agreement or to a particular facility or installation.
353 Sources of data for nonsurvey-based wage determinations:
Collective bargaining agreements.-In general, the Branch adopts a single rate typically expressed as an hourly rate (including any differential for shifts), agreed upon and contained in a collective bargaining agreement when this rate has been determined to prevail. If the rate is expressed as salary for a longer period, the Branch reduces it to its hourly equivalent by applying a standard 8-hour day and 40-hour week in the absence of probatiye information indicating another standard. In lieu of a single rate, however, the Branch may adopt a rate range-setting forth minimum and maximum rates, for example, or a wage progression dependent on a worker's length of service and culminating in the journeyman rate for the class. The Branch may set rates specially applicable to apprentices, learners, and helpers or to beginning, part-time, and casual workers. The Branch does not determine separate and unequal rates for women workers nor does it determine prospective rates, premium payments, or a guaranteed minimum wage.
354 Coordinated Federal Wage System schedules.The Branch may adopt one or more CFWS rates, on establishing that they prevail at the facility to which a wage determination is intended to apply, by comparing the number of such workers there under CFWS with the number of workers employed by contractors at the facility. In drawing such a comparison, the Branch takes care to ascertain the number of full-time equivalent contract workers, sinci they may typically work part-time on certain contracts such as those for janitorial services. In using CFWS schedules, the Branch adopts the second step, which is considered to represent the journeyman level of blue-collar workers at the facility. In rare cases, rates set forth in the wage determination may also include those applicable to white-collar workers, based on the General Schedule system.
355 Classification under the General Schedule.-The General Schedule (GS) system is the position classification plan established under Chapter 51, Title 5, U.S. Code for pay and allowances of Government employees. In selecting a comparable GS-grade on which to base a determined rate, the Branch customarily adopts the fourth pay step of the applicable GS-grade range, the same step used to equate a Government occupational class with its counterpart in the private sector,
356 Revising CFWS-GS wage determinations.-In responding to an incoming SF 98 for a contract the applicable wage determination to which was based on CFWS and GS schedules, if the dominance of Government employees over those hired by contractor can be established, the Branch takes care to find out whether the WD needs revision based on changes in the respective schedules. If the Branch cannot establish such dominance, it explores the viability of changing the basis of the WD to some survey relevant to the locality in which the contemplated service will be performed. Should it find no survey applicable to the locality, the Branch, instead of revising the WD in accordance with CFWSGS data, continues it in effect either with the rates previously determined or with rates determined from pay practices of the incumbent contractor.
3577 Decisions under the Davis-Bacon and Related Acts.—When basing a wage determination on a DBRA decision, the Branch adopts the wage rates stated in the decision which are applicable in the county in which the work will be performed. The Branch secures these schedules, published with effective dates of inception and expiration, from the Division of Wage Determinations in the Wage and Labor Standards Administration.
358 Incumbent-contractor pay practices. - When basing a wage determination on the pay practices of an incumbent contractor, the Branch communicates with the contractor to discover whether the rates listed in a current wage determination reflect the wages actually in effect. The Branch secures the contractor's confirmation in writing and revises the applicable WD according to his current practice.
360-384 DETERMINING THE PREVAILING FRINGE BENEFITS
360 General.—The Service Contract Act and 29 CFR 4 require certain sery. ice contracts to contain provisions specifying the fringe benefits to be paid the respective classes of service employees employed. The Branch determines fringe benefits in accordance with practices prevailing in a locality. The employing contractor may discharge his obligation to furnish specified fringe benefits by furnishing equivalent combinations of benefits or by making equivalent payments in cash.
361 “Paid” fringe benefit.-In order for the Branch to adopt a particular benefit as prevailing, it must first establish that the benefit is furnished or paid to an employee or his representative independently of an event such as illness or death in the family. Each employee must be either equally eligible to receive the benefit or equally capable of qualifying for the benefit.
362 Prevailing fringe benefit.-A particular fringe benefit is considered by the Branch to prevail when it is furnished to a majority of the employees in the locality. Its application, however, may be restricted to certain occupations as in wage determinations based on collective bargaining agreements and some based on laundry or moving-and-storage surveys; or the benefit may refleet the practices of combined occupational classes as is usual in WD's based on metropolitan area surveys. The Branch determines prevailing practice on the basis of the most relevant information available for an occupational class.
363 Consistency with wage-data basis.-Generally, the same data that support the minimum-wage listed in the determination also support the listed fringe benefits. In the absence of fringe-benefit data specifically applicable to a particular occupational class or industry—the food industry, for example the Branch relies on combined data for all occupational classes in all industries surveyed in the metropolitan area.
364 National minimum fringe benefits.- When fringe-benefit data for a locality such as an isolated military installation are not available to the Branch, or if it finds that workers receiving specified fringe benefits constitute less than a majority of their occupational class in the locality, it may rely on the scale of benefits considered by the Bureau of Labor Statistics to prevail nationally for most workers surveyed as reported in its most recent bulletin, Wages and Related Benefits, Part II: Metropolitan Areas, United States and Regional Summaries. The current scale of benefits considered to prevail nationally comprises :
(a) Certain health and welfare benefits depending on locality,
(b) 1 week paid vacation after 1 year of service and 2 weeks after 5 years, and
(c) 6 paid holidays per year. 365 Types of wage determinations. In the following sections, the Branch's determination of prevailing fringe benefits is differentiated according to the basis for determination: either survey data or another basis.
370 Survey based wage determinations.-The Branch generally adopts those fringe benefits shown to prevail for a majority of the workers included in a relevant survey. BLS surveys present fringe-benefit data for plant and office workers separately; the determined benefits accordingly reflect the separate practices applicable. Even when fringe-benefit data are available for separate economic sectors, the Branch whenever possible bases a determination on data representing all surveyed sectors and adopts the benefits prevailing for an overwhelming majority of workers in the locality studied by the survey : typically, benefits for health and welfare, vacation, and holidays. A surveybased WD lists all benefits determined by the survey to be prevailing.
371 Locality. For fringe-benefit purposes, the locality of a wage determination is generally the area referred to by the wage data representing the practices of all establishments within scope of a survey. In the absence of specific fringebenefit data for a smaller geographic locality, the Branch may rely on data for an adjacent metropolitan area or larger area encompassing the localitya state, for example, or the United States.
372 Health and welfare benefit.-BLS publishes health and welfare benefit data in all its regular area wage surveys and plans to publish them in studies
requested under the Service Contract Act. The Branch adopts a health and welfare benefit on the basis of locality data showing its prevalence and on the basis of nationwide data showing the employer's contribution for such benefits.
373 Prevalence.-The Branch may adopt a health and welfare benefit when a survey shows a majority of workers receiving paid plans for life, accidental death and dismemberment, sickness and accident, hospitalization, surgical, medical, and catastrophe insurance. If the survey shows a majority of workers receiv. ing at least 4 of these paid insurance plans, the Branch adopts a health and welfare benefit; but if the survey shows only 3 insurance plans paid for the majority, the Branch adopts a health and welfare benefit only if a majority of the employees explicitly receive paid hospital, surgical and medical insurance plans.
374 Nationroide benefit.-In accordance with Docket 68-A, the Branch applies a health and welfare benefit of $0.06 an hour (which may be paid as $2.40 a week or $10.40 a month) to BLS-based wage determinations. However, if separate employees-compensation data by industry are available, the Branch may determine another benefit level prevailing for an industry as the $0.02 an hour adopted for some laundry and cleaning wage and fringe-benefit determinations.
375 Studies requested under the Service Contract Act.-In a locality studied under the SCA program, for which health and welfare benefit data are not yet available due to BLS's biennial scheduling of benefit practices, the Branch may apply a health and welfare benefit when analysis confirms (a) That locality practices are comparable to those in an adjacent metropolitan area for which data are available, or (b) That the locality is in a region where health and welfare benefits have generally been determined to prevail.
376 Vacation benefit.-According to Docket 66-A, for a wage determination based on an area survey, the Branch adopts the schedule of vacation benefits provided to a majority of the workers with from 6 months to 5 years service. Current survey data typically show a prevailing nationwide vacation payment of 1 week after 1 year service and 2 weeks after 2 years (although, in many instances, 2 weeks vacation is paid only after 3, 4, or 5 years service). The obligation of a contractor or successor contractor respecting fringe benefits varies according to the particular provision stated in each wage determination such as “1 week paid vacation after 1 year of service with a contractor or successor," a phrase designed to place prospective contractors on the same competitive footing as the incumbent in the consideration of liability for vacation benefits. This clause "contractor or successor"-requires that all continuous prior service of an employee, either with the present contractor or predecessor contractors in the performance of similar work in the same facility is to be counted toward the employee's eligibility qualification for vacation benefits. An employee's right to a vacation is earned on the first anniversary date of his employment and upon each anniversary date of employment thereafter; the employer at that time is responsible for paying the entire benefit amount due. A new contractor, on the other hand, does not inherit any liability of the predecessor contractor for vacation pay. This position has been adopted by the Wage and Hour Division to remedy an inequitable situation previously obtaining at certain installations where, due to annual turnover of contractors successively employing the same service employees, many employees were found to have worked during some years without ever becoming entitled to vacation pay (compare FOH 14b01-14b03).
379 Holiday benefit.-The Branch adopts as prevailing in a locality the whole number of paid holidays provided annually to more than 50 percent of the workers surveyed. In determining the whole number of paid holidays, the Branch counts 2 half-days as 1 day; for example, 6 holidays and 2 half-days are determined to total 7 paid holidays. Holidays are listed in succession according to the following order: Order, Designation and Date Implied:
First: Christmas Day, December 25
If 6 paid holidays prevail, for example, the first through sixth holidays shown above will be designated. In accordance with Docket 66-B, designated holidays correspond to those provided most workers on a nationwide basis. Although designated on the wage determination, the employer may substitute other holidays according to 29 CFR 4, Subpart B; this is expressed in the WD by adding the clause, “(A contractor may substitute for any of the named holidays another day off with pay in accordance with a plan communicated to the employees invoived.)"
380 Nonsurvey-based wage determinations: Collective bargaining agreements and pay practices of incumbent contractors:
Prevailing practices. In determining fringe benefits based on other than survey data, the practices actually prevailing in a locality are to be reflected, not, just the terms of a collective bargaining agreement. If practices differ from provisions of a pertinent agreement, the Branch adopts the prevailing practice and documents the WD docket accordingly, clarifying the divergence between the recorded agreement and the actual practice. When issuing a wage determination based on the pay practices of an incumbent contractor, the Branch adopts the practices in effect at the time the WD is issued. which may differ from those formerly practiced by the predecessor contractor on a preceding contract.
381 Benefits.-A nonsurvey-based wage determination lists all significant benefits which can be determined to be of a monetary nature contributed by the employer and convertible to cash equivalents—including but not limited to health and welfare, vacation (and pro-rata payment on separation), holiday, pension, sick leave, apprenticeship training, and educational benefits-and qualifies the requirements an employee must meet to receive them. If applicable, the WD further lists any employees not entitled to benefits such as casual or part-time employees. If an agreement refers to an ambiguous class such as "beginner," the Branch, as appropriate, defines the term.
382 Coordinated Federal Wage System-General Schedule System.-Benefits listed on wage determinations which are based on these schedules are limited to compulsory practices-vacation and holiday benefits, and in some instances shift differentials-but exclude optional plans such as the health and welfare plans that are available to Federal service employees.
383 The Davis-Bacon and Related Acts.-In a wage determination for construction-type services, the Branch lists those fringe benefits specified in the applicable DBRA decision.
TABLE OF CONTENTS
500 General.-Any party affected by an SCA wage determination may request and shall be afforded a review of that determination. The statute does not provide for court or other type of review. The regulations issued under the act do not establish a formal review procedure. As a matter of policy the Wage and Hour Division conducts a full review whenever a proper request is received and thereafter modifies or affirms the determination.
501 Affected parties.-While a request for review is not limited as to source, affected parties generally consist of contracting agencies, contractors (including bidders), employees, employers associations, and labor unions.
502 Evidence considered.-In carrying out a review, the Branch reconsiders all wage data and other evidence which was considered at the time of issuance of the determination; it considers evidence furnished by the party requesting review; and it obtains and considers all additional evidence that can be obtained.
503 Action upon review.—When the review is completed, a decision is made either to modify the determination or to affirm it.
(a) Modification.- Where the review establishes the need for modification, the party requesting review is advised of the action being taken. Two courses of action are possible: the determination is revised or it may be withdrawn.
(6) Affirmed.-Where review supports the determination in question, the party requesting review is so advised.