The Federal contracting agency is directed to withhold sums necessary to satisfy liabilities for liquidated damages and unpaid overtime wages. If the amounts withheld are not sufficient to satisfy the liability for underpayment of wages, the employees must be paid an equitable proportion of the sums. Then they have a right of action against the employer for the balance and it is no defense that they have accepted less than the required amounts.

CONSTRUCTION SAFETY AND HEALTH STANDARDS

This statute, which was originally entitled the "Contract Work Hours Standards Act of 1962", was amended by the Act of August 9, 1969 (76 Stat. 357) which changed its title to "Contract Work Hours and Safety Standards Act" and added at the end thereof a new section 107 (40 U.S.C. 333). The provisions added to the Act are designed to promote health and safety in the building trades and construction industry on all Federal, federally financed, and federally assisted construction projects in excess of $2,500. They specifically cover new construction and alterations and repair, including painting and decorating.

STANDARDS, REPORTING, AND COMPLIANCE

The Secretary of Labor is authorized:

(1) to promulgate safety and health standards;

(2) to establish and supervise programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe working conditions;

(3) to collect reports and data, and consult with and advise employers as to the best means of preventing injuries; and

(4) to make inspections, hold hearings, issue orders, and make such decisions as are deemed necessary to gain compliance with the health and safety standards promulgated under the Act. Under section 4 (b) (2) of the Occupational Safety and Health Act of 1970, standards issued under this Act are deemed to be occupational safety and health standards issued under the Safety and Health Act. They may be superseded by standards promulgated under the Safety and Health Act.

ADMINISTRATION

Inspections, educational programs, reporting and data-collecting functions are conducted through regional and area offices located throughout the country. Copies of the Act, and the health and safety standards promulgated thereunder, are available at each of these

offices.

NONCOMPLIANCE

In the event, after an adjudicatory hearing, the Secretary determines noncompliance with the standards:

(1) The government agency for which the contract work is done has the right to cancel the contract, and to enter into other contracts for the completion of the contract, charging any additional cost to the original contractors.

(2) The U.S. district courts have jurisdiction to enforce compliance with the safety and health standards promulgated by the Secretary.

(3) On findings of repeated willful or grossly negligent violations of the Act, the Secretary is authorized to transmit the name of such contractors or subcontractors to the Comptroller General. The Comptroller General will distribute such names to all agencies of the government, who must withhold awards of contract from them for a period of three years.

The Secretary may terminate the debarment before the end of the three-year period if the safety and health requirements are met to his satisfaction.

Text of Act

(Section Nos. refer to U.S. Code)

§ 327. Definition of Secretary.

As used in sections 327 to 333 of this title, the term "Secretary" means the Secretary of Labor, United States Department of Labor. (Pub. L. 87-581, title I, § 101, Aug. 13, 1962, 76 Stat. 357.)

§ 328. Eight-hour day and forty-hour week; overtime compensation; contractual conditions; liability of employers for violation; withholding funds to satisfy liabilities of employers. (a) Notwithstanding any other provision of law, the wages of every laborer and mechanic employed by any contractor or subcontractor in his performance of work on any contract of the character specified in section 329 of this title shall be computed on the basis of a standard workday of eight hours and a standard workweek of forty hours, and work in excess of such standard workday or workweek shall be permitted subject to the provisions of this section. For each workweek in which any such laborer or mechanic is so employed, such wages shall include compensation, at a rate not less than one and one-half times the basic rate of pay, for all hours worked in excess of eight hours in any calendar day or in excess of forty hours in the workweek, as the case may be.

(b) The following provisions shall be a condition of every contract of the character specified in section 329 of this title and of any obligation of the United States, any territory, or the District of Columbia in connection therewith:

(1) No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any laborer or mechanic, in any workweek in which he is employed on such work, to work in excess of eight hours in any calendar day or in excess of forty hours in such workweek except in accordance with the provisions of sections 327 to 333 of this title; and

(2) In the event of violation of the provisions of paragraph (1), the contractor and any subcontractor responsible therefor shall be liable to such affected employee for his unpaid wages and shall, in addition, be liable to the United States (or, in the case of work done under contract for the District of Columbia or a territory, to such

District or to such territory) for liquidated damages as provided therein. Such liquidated damages shall be computed, with respect to each individual employed as a laborer or mechanic in violation of any provision of sections 327 to 333 of this title, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of eight hours or in excess of the standard workweek of forty hours without payment of the overtime wages required by sections 327 to 333 of this title. The governmental agency for which the contract work is done or by which financial assistance for the work is provided may withhold, or cause to be withheld, subject to the provisions of section 330 of this title, from any moneys payable on account of work performed by a contractor or subcontractor, such sums as may administratively be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as herein provided. (Pub. L. 87-581, title I, § 102, Aug. 13, 1962, 76 Stat. 357.)

§ 329. Contracts subject to sections 327 to 333 of this title; workers covered; exceptions.

(a) The provisions of sections 327 to 333 of this title shall apply, except as otherwise provided, to any contract which may require or involve the employment of laborers or mechanics upon a public work of the United States, of any territory, or of the District of Columbia, and to any other contract which may require or involve the employment of laborers or mechanics if such contract is one (1) to which the United States or any agency or instrumentality thereof, any territory, or the District of Columbia is a party, or (2) which is made for or on behalf of the United States, any agency or instrumentality thereof, any territory, or the District of Columbia, or (3) which is a contract for work financed in whole or in part by loans or grants from, or loans insured or guaranteed by, the United States or any agency or instrumentality thereof under any statute of the United States providing wage standards for such work: Provided, That the provisions of section 328 of this title, shall not apply to work where the assistance from the United States or any agency or instrumentality as set forth above is only in that nature of a loan guarantee, or insurance. Except as otherwise expressly provided, the provisions of the Act shall apply to all laborers and mechanics, including watchmen and guards, employed by any contractor or subcontractor in the performance of any part of the work contemplated by any such contract, and for purposes of sections 327 to 333 of this title, laborers and mechanics shall include workmen performing services in connection with dredging or rock excavation in any river or harbor of the United States or of any territory or of the District of Columbia, but shall not include any employee employed

as a seaman.

(b) Sections 327 to 333 of this title shall not apply to contracts for transportation by land, air, or water or for the transmission of intelligence, or for the purchase of supplies or materials or articles ordinarily available in the open market. Sections 327 to 333 of this title shall not apply with respect to any work required to be done in accordance with the provisions of the Walsh-Healey Public Contracts Act. (Pub. L. 87-581, title I, § 103, Aug. 13, 1962, 76 Stat. 358.)

§ 330. Report of violations and withholding of funds for unpaid wages and liquidated damages.

(a) Reports of inspectors; determination of amount of unpaid wages and liquidated damages; authorization for direct payments by Comptroller General.

Any officer or person designated as inspector of the work to be performed under any contract of the character specified in section 329 of this title, or to aid in the enforcement or fulfillment thereof shall, upon observation or investigation, forthwith report to the proper officer of the United States, of any territory or possession, or of the District of Columbia, all violations of the provisions of sections 327 to 333 of this title occurring in the performance of such work, together with the name of each laborer or mechanic who was required or permitted to work in violation of such provisions and the day or days of such violation. The amount of unpaid wages and liquidated damages owing under the provisions of sections 327 to 333 of this title shall be administratively determined and the officer or person whose duty it is to approve the payment of moneys by the United States, the territory, or the District of Columbia in connection with the performance of the contract work shall direct the amount of such liquidated damages to be withheld for the use and benefit of the United States, said territory, or said District, and shall direct the amount of such unpaid wages to be withheld for the use and benefit of the laborers and mechanics who were not compensated as required under the provisions of sections 327 to 333 of this title. The Comptroller General of the United States. is authorized and directed to pay directly to such laborers and mechanics, from the sums withheld on account of underpayments of wages, the respective amounts administratively determined to be due, if the funds withheld are adequate, and, if not, an equitable proportion of such amounts.

(b) Rights of action and intervention against contractors and sureties. If the accrued payments withheld under the terms of the contract, as aforesaid, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages required pursuant to sections 327 to 333 of this title, such laborers and mechanics shall, in the case of a department or agency of the Federal Government, have the rights of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds. (c) Right of contractors to appeal; limitations; administrative determination; review by Secretary and issuance of final decision; filing claim in Court of Claims.

Any contractor or subcontractor aggrieved by the withholding of a sum as liquidated damages as provided in sections 327 to 333 of this title shall have the right, within sixty days thereafter, to appeal to the head of the agency of the United States or of the territory for which the contract work is done or by which financial assistance for the work is provided, or to the Commissioner of the District of Columbia in the

case of liquidated damages withheld for the use and benefit of said District. Such agency head or Commissioner, as the case may be, shall have authority to review the administrative determination of liquidated damages and to issue a final order affirming such determination; or, if it is found that the sum determined is incorrect or that the contractor or subcontractor violated the provisions of sections 327 to 333 of this title inadvertently notwithstanding the exercise of due care on his part and that of his agents, recommendations may be made to the Secretary that an appropriate adjustment in liquidated damages be made, or that the contractor or subcontractor be relieved of liability for such liquidated damages. The Secretary shall review all pertinent facts in the matter and may conduct such investigations as he deems necessary, so as to affirm or reject the recommendation. The decision of the Secretary shall be final. In all such cases in which a contractor or subcontractor may be aggrieved by a final order for the withholding of liquidated damages as hereinbefore provided, such contractor or subcontractor may, within sixty days after such final order, file a claim in the Court of Claims: Provided, however, That final orders of the agency head, the Commissioner of the District of Columbia or the Secretary, as the case may be, shall be conclusive with respect to findings of fact if such findings are supported by substantial evidence. (d) Applicability of other laws

Reorganization Plan Numbered 14 of 1950 shall be applicable with respect to the provisions of sections 327 to 333 of this title, and section 2 of the Act of June 13, 1934, as amended, shall be applicable with respect to those contractors and subcontractors referred to therein who are engaged in the performance of contracts subject to the provisions of sections 327 to 333 of this title. (Pub. L. 87-581, title I, § 104, Aug. 13. 1962, 76 Stat. 358.)

§ 331. Limitations, variations, tolerances, and exemptions.

The Secretary may provide such reasonable limitations and may make such rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any of all provisions of sections 327 to 333 of this title as he may find necessary and proper in the public interest to prevent injustice or undue hardship or to avoid serious impairment of the conduct of Government business. (Pub. L. 87581, title I, § 105, Aug. 13, 1962, 76 Stat. 359.)

§ 332. Violations; penalties.

Any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed in the performance of any work contemplated by any contract to which sections 327 to 333 of this title applies, who shall intentionally violate any provision of such sections, shall be deemed guilty of a misdemeanor, and for each and every such offense shall, upon conviction, be punished by a fine of not to exceed $1,000 or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof. (Pub. L. 87-581, title I, § 106, Aug. 13, 1962, 76 Stat. 359.)

§ 333. Health and safety standards in building trades and construction industry.

(a) Condition of contracts; proceedings for promulgation of regulations: hearing, consultation with Advisory Committee.