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FirstStep Employment Law Advisor

Basic Overview of Laws

Results

You have indicated that:

  • You want a Basic Overview of Laws
  • The nature of your business or organization is: Education
  • The maximum number of employees your business or organization employs or will employ during the calendar year is 150 or more.
  • There are 50 or more employees working at or within a 75-mile radius of the location of your business or organization.
  • You hire or plan to hire disabled workers.
  • You hire or plan to hire foreign workers under the following programs:
    • Workers in Professional and Specialty Occupations (H-1B)
  • Your organization has made a payment to or is in a financial arrangement with a labor organization or a labor organization officer, employee or other representative. (The specific conditions that must apply are found in the Advisor.)
  • Your business or organization currently maintains or plans to maintain a pension plan or a retirement savings program for employees.
  • Your business or organization currently maintains or plans to maintain a health benefits plan for employees.
  • Your business or organization has a Federal contract(s) or subcontract(s) that in the next 12-month period, has an expected total dollar amount of: over $100,000.00.
  • Your business or organization has a contract(s) or subcontract(s) that can best be described as:
  • Your establishment is located in: Michigan, which has its own OSHA state plan.

Based on the information you provided in response to the questions in the Advisor, the following employment laws administered by the Department of Labor (DOL) likely apply to your business or organization. Please note that the Advisor covers only the major employment laws administered by DOL. In addition, the Advisor does not identify laws administered by other Federal agencies that might be applicable to your business or organization.

In addition to posters of general application, certain organizations may be required to display posters that can only be obtained from DOL's Office of Workers' Compensation Programs (OWCP). More information on these posters is available. Links to Federal employment posters are always available on the Poster Page. Please note that some localities have workplace poster requirements, as do some other Federal agencies such as the Department of Housing and Urban Development which requires certain businesses to post its Equal Housing Opportunity poster.

Thank you for using the Department of Labor's FirstStep Employment Law Advisor. Please return to the beginning of this Advisor if you want to check the requirements for another establishment.

Title III, Consumer Credit Protection Act (CCPA)

(15 USC §1671 et seq.(PDF); 29 CFR Part 870)

Who is Covered

Title III of the Consumer Credit Protection Act (CCPA) is administered by the Wage and Hour Division (WHD). The CCPA protects employees from discharge by their employers because their wages have been garnished for any one debt, and it limits the amount of an individual's earnings that may be garnished in any one week for certain types of debts. Title III may limit garnishment for any employee or individual who receives earnings for personal services (including wages, salaries, commissions, bonuses, and periodic payments from a pension or retirement program).

Basic Provisions/Requirements

Wage garnishment occurs when an employer is required to withhold the earnings of an individual for the payment of a debt in accordance with a court order or other legal or equitable procedure (e.g., a debt owed by the individual to a credit card company). Title III prohibits an employer from discharging an employee because his or her earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it. Title III does not, however, protect an employee from discharge if the employee's earnings have been subject to garnishment for a second or subsequent debt.

Title III also protects individuals by limiting the amount of earnings that may be garnished in any workweek or pay period to the lesser of 25 percent of disposable earnings or the amount by which disposable earnings are greater than 30 times the Federal minimum hourly wage prescribed by Section 6(a) (1) of the Fair Labor Standards Act of 1938. This limit applies regardless of how many garnishment orders an employer receives. The Federal minimum wage is $7.25 per hour.

Title III permits a greater amount of an individual's earnings to be garnished to enforce any order for the support of any person (e.g., spousal support or child support). Title III allows up to 50 percent of an individual's disposable earnings to be garnished for support if the individual is supporting a current spouse or child who is not the subject of the support order, and up to 60 percent if the individual is not doing so. An additional five percent may be garnished for support payments over 12 weeks in arrears.

An individual's "disposable earnings" is the amount of earnings left after legally required deductions (e.g., Federal, state and local taxes; the individual's share of Social Security, Medicare, and unemployment insurance taxes; and contributions to state employee retirement systems required by law) have been made. Deductions not required by law (e.g., union dues, health and life insurance premiums, and charitable contributions) are not subtracted from earnings when the amount of disposable earnings for garnishment purposes is calculated.

Title III's restrictions on the amount of wages that can be garnished do not apply to certain bankruptcy court orders or debts due for Federal or state taxes. Nor do they affect voluntary wage assignments, i.e., situations where workers voluntarily agree that their employers may turn over a specified amount of their earnings to a creditor or creditors.

Employee Rights

Title III will in most cases give individuals the right to receive at least partial compensation for the personal services that they provide despite garnishment. This law also prohibits an employer from discharging an employee because of the garnishment of wages for any single indebtedness. The Wage and Hour Division accepts complaints of alleged Title III violations.

Notices/Posters

There are no poster, notice, recordkeeping or reporting requirements under Title III of the Consumer Credit Protection Act.

Compliance Assistance Available

More detailed information, including copies of explanatory brochures and regulatory and interpretative materials such as the Federal Wage Garnishment Law Fact Sheet(https://www.dol.gov/whd/regs/compliance/whdfs30.pdf), may be obtained from the Wage and Hour Division's Web site(https://www.dol.gov/whd/) or by contacting a local Wage and Hour Division office(https://www.dol.gov/agencies/whd/contact/local-offices).

Relation to State, Local, and Other Federal Laws

If a state wage garnishment law differs from Title III, the employer must observe the law resulting in the smaller garnishment and must observe any law prohibiting the discharge of an employee because his or her earnings have been subject to garnishment for more than one debt.

Penalties/Sanctions

Violations of Title III may result in the reinstatement of a discharged employee, payment of back wages, and restoration of improperly garnished amounts. Where violations cannot be resolved through informal means, the Department of Labor may initiate court action to restrain violators and remedy violations. Employers who willfully violate the law's prohibition against termination may be prosecuted criminally and fined, or imprisoned for not more than one year, or both.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Contract Work Hours and Safety Standards Act (CWHSSA)

(40 USC §327 et seq.; 29 CFR Part 5)

Who is Covered

The Contract Work Hours and Safety Standards Act (CWHSSA) is administered by the Wage and Hour Division (WHD). CWHSSA applies to contractors on certain contracts with the federal government or the District of Columbia that require or involve the employment of laborers or mechanics (including guards and watchpersons), including federal service contracts and federal construction contracts over $150,000 ($100,000 for federal construction contracts that are not subject to the Federal Acquisition Regulations). Covered contracts include those entered into by the federal government, any agency or instrumentality of the federal government, any territory of the U.S., or the District of Columbia.

CWHSSA also applies to certain federally assisted construction contracts over $100,000 subject to Davis-Bacon and Related Acts labor standards where the federal government is not a direct party, except CWHSSA does not apply to work where the federal assistance is only a loan guarantee or insurance.

Certain contracts are exempt from CWHSSA. These include contracts for the following:

  • Transportation by land, air, or water;
  • Transmission of intelligence;
  • Purchase of supplies, materials, or articles ordinarily available in the "open market";
  • Work required to be done in accordance with provisions of the Walsh-Healey Public Contracts Act; and
  • Contracts administratively exempted by the Secretary of Labor in special circumstances in the public interest to prevent injustice or undue hardship or to avoid serious impairment of federal government business.

Basic Provisions/Requirements

The Contract Work Hours and Safety Standards Act (CWHSSA) requires contractors to pay laborers and mechanics, including watchpersons and guards, employed in the performance of covered contracts not less than one and one-half times their basic rate of pay for all hours worked over 40 in a workweek.

Employee Rights

The Contract Work Hours and Safety Standards Act (CWHSSA) provides workers on covered contracts the right to receive not less than one and one-half times their basic rate of pay for all hours worked over 40 in a workweek on such contracts. The Wage and Hour Division accepts complaints of alleged CWHSSA wage violations. Wage and Hour Division local offices are listed at www.dol.gov/whd/america2.htm.

It is prohibited to retaliate against or fire workers or job applicants for engaging in protected activities such as making a complaint or cooperating in a Wage and Hour Division investigation under the CWHSSA.

Notices/Posters

The Contract Work Hours and Safety Standards Act (CWHSSA) does not have its own posting requirement. However, if the contract to which CWHSSA applies is subject to the Davis-Bacon and Related Acts' requirements, the Notice of Worker Rights on Federal or Federally Financed Construction Projects poster must be posted. If the contract to which CWHSSA applies is subject to the Service Contract Act's requirements, the "Worker Rights on Government Contracts" poster must be posted. The appropriate poster(s) must be posted at the worksite in a prominent and accessible place where it may be easily seen by workers. There is no size requirement for these posters but they must be easily readable.

Recordkeeping

The Contract Work Hours and Safety Standards Act (CWHSSA) requires contractors to maintain records that provide the following information for each covered worker:

  • Name;
  • Telephone number;
  • Email Address;
  • Street Address;
  • Social Security number;
  • Correct classification(s) of work performed;
  • Hourly rates of wages paid, including rates of contributions or costs anticipated for bona fide fringe benefits or their cash equivalents;
  • Daily and weekly number of hours worked;
  • Deductions made; and
  • Actual wages paid.

Contractors must maintain these records during the course of the work and for a period of three years after all the work on the prime contract is completed. They also must be made available to the contracting agency and the Department of Labor upon request.

Depending on the type of federal contract involved, the recordkeeping requirements of the Davis-Bacon and Related Acts (DBRA) or the McNamara-O'Hara Service Contract Act (SCA) may also apply to contracts subject to the CWHSSA.

Reporting

Weekly certified payrolls

On contracts to which the labor standards provisions of the Davis-Bacon and Related Acts (DBRA) apply, each contractor is required by the DBRA to provide weekly to the contracting agency a weekly statement of the wages paid to each of its workers engaged in covered work, among other information required. Each certified payroll submitted must be accompanied by a Statement of Compliance using either page 2 of Form WH-347 Payroll (For Contractors Optional Use), or any form with identical wording, certifying compliance with applicable requirements. The statements must be signed by the contractor or by an authorized officer or employee of the contractor who supervises the payment of wages. The certified payrolls must be submitted to the contracting agency, if the agency is a party to the contract, or to the applicant, sponsor, owner, or other entity, as the case may be, if the agency is not a party to the contract. These certified payrolls must be submitted within seven days after the regular payment date of the payroll period. The certified payrolls may be submitted by any method permitted by the contracting agency, but must be signed with an original handwritten signature or, if required or permitted, a legally valid electronic signature.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Contract Work Hours and Safety Standards Act (CWHSSA).

Relation to State, Local, and Other Federal Laws

The provisions of the Contract Work Hours and Safety Standards Act (CWHSSA) may also apply to Davis-Bacon and Related Acts (DBRA) contracts where the contract is financed in whole or in part by grants or loans from the U.S. Government, or loans insured or guaranteed by the U.S. Government, except where the federal assistance is only in the nature of a loan guarantee or insurance. The overtime requirements of the Fair Labor Standards Act (FLSA) frequently also apply to Davis-Bacon and Related Acts (DBRA) contracts. In addition to these federal labor standards, state overtime pay requirements may apply.

Penalties/Sanctions

Contractors or subcontractors who intentionally violate the Contract Work Hours and Safety Standards Act (CWHSSA) may be subject to fines, imprisonment, or both.

Contractors and subcontractors who violate CWHSSA's overtime wage provision are liable to the affected worker(s) for the unpaid wages. Overtime wage violations may also result in the assessment of liquidated damages for each calendar day a worker is allowed to work in excess of a 40-hour workweek without payment of the required overtime compensation.

Accrued contract amounts may be withheld in sums necessary to satisfy the liabilities of the contractor for unpaid wages and liquidated damages. Any contractor from whom contract monies have been withheld for liquidated damages may appeal to the head of the contracting agency. The agency head shall review the administrative determination and issue a final order. If the damages sum is determined to be incorrect, or the contractor or subcontractor inadvertently violated the provisions of the CWHSSA while exercising due care, the contracting agency head may recommend appropriate adjustments in the liquidated damages to the Administrator of the Wage and Hour Division, who shall issue an order with respect to the recommendation. Such order may be appealed to the Department's Administrative Review Board (Board). The contractor or subcontractor may file a claim in the U.S. Court of Federal Claims for all final orders mandating a liability for withholding of liquidated damages.

Workers have rights of action and/or of intervention against the contractor and its sureties if the amounts withheld are insufficient to reimburse the unpaid wages. Under such an action, it is no defense that workers accepted less than the required rate of wages or voluntarily returned wage payments to the contractor.

Contractors found to have committed violations of CWHSSA's overtime requirements may have their contracts terminated. Contractors found to have disregarded their obligations to workers or subcontractors may be debarred from receiving future contracts for 3 years.

Contractors may challenge the Wage and Hour Division's determinations of violations before an Administrative Law Judge (ALJ). Contractors may appeal ALJ decisions and orders to the Administrative Review Board (ARB). ARB determinations on violations may be appealed to and are enforceable through the federal courts.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Executive Order 11246, as amended (Parts II, III, and IV)

(41 CFR Parts 60-1, 60-2, 60-3, 60-20, and 60-50)

Who is Covered

Executive Order 11246 (E.O. 11246) as amended, and its implementing regulations are administered by the Office of Federal Contract Compliance Programs (OFCCP) and cover employers with Federal contracts or subcontracts and federally assisted construction contracts and subcontracts that exceed $10,000 or that will (or can reasonably be expected to) accumulate to more than $10,000 in any 12-month period.

Contracts covered by E.O. 11246 and the implementinh regulations may be for the purchase, sale, or use of personal property or nonpersonal services. In this context, the term "personal property" includes supplies and contracts for the use of real property, such as lease arrangements, unless the contract for the use of real property is itself considered real property (such as with easements). The term "nonpersonal services" includes, but is not limited to, services such as utilities, construction, transportation, research, insurance, and fund depository. Agreements in which the parties stand in the relationship of employer and employee are not covered.

The following types of contracts and subcontracts are exempt from E.O. 11246:

  • Those not exceeding $10,000 with the exception of government bills of lading and certain types of agreements with certain financial institutions
  • Contracts for indefinite quantities when the contracting agency determines that the cost in any one year will not exceed $10,000
  • Those for work that is performed outside the U.S. by employees who were not recruited in the U.S.

Specific exemptions may apply to the following:

  • Contracts and subcontracts with certain religious entities or educational institutions
  • Contracts and subcontracts for work on or near Indian reservations
  • Contracts and subcontracts involving national security, if the head of the contracting agency determines both that the contract is essential to national security, and noncompliance with a particular requirement of E.O. 11246 or the regulations with respect to the process of awarding the contract is essential to national security
  • Specific contracts or subcontracts, if the Director of the Office of Federal Contract Compliance Programs decides that special circumstances in the national interest require such an exemption
  • Contractor facilities not related to contract performance as determined by the OFCCP
  • Contracts and subcontracts with state or local governments, except for the specific government entity that participates in work on or under the contract

Moreover, contractors or subcontractors that are religious entities may grant employment preferences to individuals of a particular religion but must comply with other requirements of E.O. 11246.

E.O. 11246 and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a Federal contract or subcontract. This coverage is narrower than that which applies to private sector employers.

Basic Provisions/Requirements

E.O. 11246 requires covered contractors and subcontractors to refrain from discrimination and to engage in affirmative steps to ensure that applicants and employees receive equal employment opportunity regardless of race, color, religion, sex, sexual orientation, gender identity, and national origin. Additionally, E.O. 11246 prohibits contractors and subcontractors from taking adverse action against employees or applicants for asking about, discussing or disclosing their pay or the pay of their co-workers.

E.O. 11246 requires all covered contractors and subcontractors to include a specific equal opportunity clause in each of their nonexempt contracts and subcontracts. E.O. 11246 and the regulations provide the required language for this clause.

The Department of Labor's regulations prohibit discrimination in such employment practices as recruitment, rates of pay, upgrading, layoff, promotion, and selection for training. Employers may not make distinctions based on race, color, religion, sex, sexual orientation, gender identity or national origin in recruitment or advertising efforts, employment opportunities, wages, hours, job classifications, seniority, retirement ages, or job fringe benefits such as employer contributions to company pension or insurance plans. Additionally, contractors are prohibited from taking adverse action against employees or applicants for asking about, discussing or disclosing their pay or the pay of their co-workers. The regulations include other requirements, such as those summarized below.

Nonconstruction (supply and service) contractors and subcontractors that employ 50 or more persons and that also satisfy at least one of four additional criteria (e.g., having a Federal contract of $50,000 or more) must develop and maintain written affirmative action programs (AAPs). Usually an AAP must cover each of the contractor's establishments.

If a contractor wishes to establish an AAP other than by establishment, the contractor may reach agreement with OFCCP on the development and use of functional AAPs, which are organized along functional or business lines. The AAP is a management tool designed to ensure equal employment opportunity.

In general, the AAP will describe the policies, practices, and procedures that the contractor or subcontractor uses to ensure that all qualified applicants and employees receive equal opportunities for employment and advancement. If the contractor or subcontractor is not employing women or minorities at a rate to be expected given their availability in the relevant labor pool, the AAP will include specific practical steps to address the issue. Contractors with AAPs must implement them, keep them on file, and update them annually. Additional information on AAPs may be found on the OFCCP website.

Covered contractors and subcontractors, regardless of company size, may not use exclusionary policies that treat men and women differently. For example, a contractor or subcontractor that hires or promotes a man who has young children cannot deny a job or a promotion to a woman because she has young children.

Covered contractors and subcontractors also may not depend on state "protective" laws to deny employment to qualified female applicants. Such "protective" laws include those prohibiting women from performing certain types of occupations, from working more than a certain number of hours, or from lifting more than a certain amount of weight.

Moreover, employers are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against an individual for filing a complaint or participating in a proceeding under E.O. 11246.

Employee Rights

Anyone has the right to file a complaint with OFCCP if he or she believes that a Federal contractor or subcontractor has discriminated against him/her on the basis of race, color, religion, sex, or national origin. In most cases, complaints must be filed within 180 days of the discriminatory action. Anyone may contact OFCCP with a question about interpreting the regulations, filing a complaint, or any other related matter.

Notices/Posters

Contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 or who hold contracts or subcontracts with the federal government in any 12-month period that have a total value of more than $10,000 are required to display the "Know Your Rights" Poster. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also display the "Know Your Rights" Poster.

The "Know Your Rights" Poster must be displayed in conspicuous places available to employees and applicants for employment and representatives of each labor union with which the covered contractor or subcontractor has a collective bargaining agreement, such as, the personnel office, work-out facility, lunchroom, or company bulletin board. There is no particular size requirement.

The "Know Your Rights" Poster is available in Spanish. There is no requirement to display the poster in languages other than English.

Additionally, contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 or who hold contracts or subcontracts with the federal government in any 12-month period that have a total value of more than $10,000 are required to post the Pay Transparency Nondiscrimination Provision. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also post the Pay Transparency Nondiscrimination Provision.

This posting requirement may be accomplished by posting the provision electronically or by posting a copy of the provision in conspicuous places available for employees and applicants. There is no particular size requirement.

Recordkeeping

Personnel records. Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:

  • Job descriptions
  • Job postings and advertisements
  • Records of job offers
  • Applications and resumes
  • Interview notes
  • Tests and test results
  • Written employment policies and procedures
  • Personnel files

Federal contractors and subcontractors with fewer than 150 employees or a contract of less than $150,000 must keep records for one year from the date of the making of the personnel record or personnel action, whichever occurs later.

Federal contractors and subcontractors with 150 or more employees or who have a government contract of $150,000 or more must keep employment records for two years from the date of the making of the personnel record or personnel action, whichever occurs later.

For any record contractors maintain, they must be able to identify the gender, race, and ethnicity of each employee and where possible, the gender, race, and ethnicity of each applicant or Internet applicant, whichever is applicable to the particular position.

The Internet applicant regulations address recordkeeping and the use of the Internet and electronic data technologies in contractors' recruiting and hiring processes. This regulation includes soliciting data on the race, gender and ethnicity of applicants. For more detail about recordkeeping requirements for Internet applicants, see OFCCP's Frequently Asked Questions .

Affirmative Action Program. Federal supply and service contractors and subcontractors who employ 50 or more persons and have a contract of $50,000 or more (or have Government bills of lading which in any 12-month period, total or can reasonably be expected to total $50,000 or more; or serves as a depository of Government funds in any amount; or is a financial institution which is an issuing and paying agent for U.S. savings bonds and savings notes in any amount) must develop and annually update a written affirmative action program (AAP) for each of their establishments. OFCCP has provided a Sample Affirmative Action Program (PDF).

A contractor establishment required under Executive Order 11246 to develop and maintain an AAP must preserve its AAP and documentation of its good faith efforts to affirmatively recruit and promote women and minorities in accordance with its AAP for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.

Covered construction contractors and subcontractors are not required to develop a written E.O. 11246 AAP. However, they must maintain documentation of the actions they took to meet the contract specifications (the 16 Steps ).

Reporting

All covered Federal contractors and subcontractors who have 50 or more employees, and who have a contract, subcontract, or purchase order amounting to $50,000 or more or serve as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes are required to submit the Employer Information Report also known as the EEO-1 Report each year to Equal Employment Opportunity Commission and the Department of Labor's Office of Federal Contract Compliance Programs Joint Reporting Committee. For information on filing the EEO-1 Report see EEO-1 forms.

Note that covered contractors may be asked to submit AAPs and other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with Executive Order 11246. Among the many resources available are:

Relation to State, Local, and Other Federal Laws

OFCCP generally refers individual complaints alleging discrimination based on race, color, religion, sex, or national origin to the Equal Employment Opportunity Commission for investigation and resolution.

Covered contractors and subcontractors that qualify as "employers" under Title VII of the Civil Rights Act of 1964 are required to comply with the Pregnancy Discrimination Act of 1978. Additional information on this law may be found at on the Equal Employment Opportunity Commission's Facts About Pregnancy Discrimination webpage. All covered contractors and subcontractors must also provide equal fringe benefits, and make equal contributions for such benefits for men and women.

Penalties/Sanctions

OFCCP conducts compliance evaluations and complaint investigations assessing whether Federal contractors and subcontractors are in compliance with E.O. 11246. If a violation is found, OFCCP may ask the Federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may, through its attorneys (Solicitor of Labor), initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor, or refer the matter to the Department of Justice for action by the Attorney General.

If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge, who hears the case and recommends a decision. If the contractor or subcontractor is dissatisfied with the Administrative Law Judge's decision, it may appeal the decision to the Department of Labor's Administrative Review Board. The Board issues the final decision, whether or not there is an appeal.

If the Board finds that the contractor or subcontractor has violated E.O. 11246, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination. Depending on the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, debarment, and/or other sanctions.

If the contractor or subcontractor is dissatisfied with the Board's decision, it may seek judicial review of the decision in the Federal courts.

DOL Contacts

Office of Federal Contract Compliance Programs (OFCCP)(https://www.dol.gov/ofccp/)
E-mail: OFCCP-Public@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-800-397-6251; TTY: 1-877-889-5627

Employee Polygraph Protection Act of 1988 (EPPA)

(29 USC §2001 et seq.; 29 CFR Part 801)

Who is Covered

The Employee Polygraph Protection Act (EPPA) is administered and enforced by the Wage and Hour Division (WHD). The EPPA applies to most private employers. The law does not cover Federal, state, and local government agencies.


Basic Provisions/Requirements

The EPPA prohibits most private employers from using lie detector tests, either for pre‑employment screening or during the course of employment. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.

Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint or for participating in a proceeding under the Act.

Subject to restrictions, the Act permits polygraph (a type of lie detector) tests to be administered to certain job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors, and dispensers.

Subject to restrictions, the Act also permits polygraph testing of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.

Where polygraph examinations are allowed, they are subject to strict standards for the conduct of the test, including the pretest, testing, and post testing phases. An examiner must be licensed if required by a state in which the test is to be conducted, and must be bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.


Employee Rights

The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption applies. Where polygraph examinations are allowed, they are subject to strict standards at the pre-test, testing, and post-testing stages. Specific notices must be given to employees or prospective employees. The Act also provides employees the right to file a lawsuit for violations of the Act. In addition, the Wage and Hour Division accepts complaints of alleged EPPA violations.


Recordkeeping, Reporting, Notices and Posters


Notices and Posters

Poster.  Every employer subject to EPPA shall post and keep posted on its premises a notice explaining the Act. The notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment. There is no size requirement for the poster. 

The EPPA poster is available in English(https://www.dol.gov/agencies/whd/posters/employee-polygraph-protection-act) and Spanish(https://www.dol.gov/agencies/whd/posters/employee-polygraph-protection-act/espanol). Posting of the EPPA poster in Spanish is optional.

Notices. There are specific notices that must be given to examinees and examiners in instances where polygraph tests are permitted:

When a polygraph test is administered pursuant to the economic loss or injury exemption, the employer is required to provide the examinee with a statement prior to the test, in a language understood by the examinee, which fully explains the specific incident or activity being investigated and the basis for testing particular employees. The statement must contain, at a minimum, the following information:

  • An identification with particulars of the specific economic loss or injury to the business of the employer
  • A description of the employee's access to the property that is the subject of the investigation
  • A detailed description of the basis of the employer's reasonable suspicion that the employee was involved in the incident or activity under investigation
  • The signature of a person (other than the polygraph examiner) authorized to legally bind the employer

Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must provide:

  • Reasonable written notice of the date, time, and place of the examination and the examinee's right to consult with legal counsel or an employee representative before each phase of the test
  • Written notice of the nature and characteristics of the polygraph instrument and examination
  • Extensive written notice explaining the examinee's rights, including a list of prohibited questions and topics, the examinee's right to terminate the examination, and the examinee's right to file a complaint with the Department of Labor alleging violations of EPPA

Employers must also provide written notice to the examiner identifying the persons to be examined.


Recordkeeping

In the limited instances where EPPA permits the administration of polygraph tests, recordkeeping requirements apply both to employers and polygraph examiners. Employers and polygraph examiners must retain required records for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted). 

Employers investigating an economic loss or injury must maintain a copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing that particular employee and proof of service of that statement to the examinee.

Employers who manufacture, distribute, or dispense controlled substances must maintain records specifically identifying the loss or injury in question and the nature of the employee's access to the person or property that is the subject of the investigation.

Every employer who requests an employee or prospective employee to submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must maintain:

  • A copy of the written statement that sets forth the time and place of the examination and the examinee's right to consult with counsel
  • A copy of the written notice provided by the employer to the examiner identifying the persons to be examined
  • Copies of all opinions, reports, or other records furnished to the employer by the examiner relating to such examinations

All polygraph examiners must maintain all opinions, reports, charts, written questions, lists, and other records relating to polygraph tests of such persons, as well as records of the number of examinations conducted during each day, and the duration of each test period.

All exempt private sector employers and polygraph examiners retained to administer examinations to persons identified by employers must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices where employment or examination records are customarily maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment or business, such records must be made available within 72 hours following notice from the Secretary of Labor or an authorized representative such as Wage and Hour Division personnel.


Reporting

There are no reporting requirements under EPPA.


Penalties/Sanctions

The Secretary of Labor can bring court action to restrain violators and assess civil money penalties. An employer who violates the law may be liable to the employee or prospective employee for appropriate legal and equitable relief, which may include employment, reinstatement, promotion, and payment of lost wages and benefits.

Any person against whom a civil money penalty is assessed may, within 30 days of the notice of assessment, request a hearing before an Administrative Law Judge. If dissatisfied with the Administrative Law Judge's decision, such person may request a review of the decision by the Administrative Review Board which the Secretary of Labor has designated to issue final agency decisions.  Final determinations on violations are enforceable through the courts.


Relation to State, Local, and Other Federal Laws

The law generally does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.


Compliance Assistance Available

More detailed information, including copies of explanatory brochures and regulatory and interpretative materials, may be obtained from a local Wage and Hour office(https://www.dol.gov/agencies/whd/contact/local-offices).

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Employee Polygraph Protection Act. Compliance assistance material related to the Act, may be found on the Employee Polygraph Protection Act (EPPA) Fact Sheet(https://www.dol.gov/whd/regs/compliance/whdfs36.pdf).


DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Employee Retirement Income Security Act (ERISA)

(29 USC §1001 et seq., 29 CFR Part 2509 et seq.)

Who is Covered

Title I of the Employee Retirement Income Security Act (ERISA) is administered by the Employee Benefits Security Administration (EBSA). The provisions of Title I of ERISA cover most private sector employee benefit plans. Such plans are voluntarily established or maintained by an employer, an employee organization, or jointly by one or more such employers and an employee organization.

Retirement plans, a type of employee benefit plan, are established or maintained to provide retirement income or to defer income until termination of covered employment or beyond. Other employee benefit plans, called welfare plans, are established or maintained to provide health benefits, disability benefits, death benefits, prepaid legal services, vacation benefits, day care centers, scholarship funds, apprenticeship and training benefits, or other similar benefits.

In general, ERISA does not cover plans established or maintained by government entities or churches for their employees, or plans which are maintained solely to comply with workers' compensation, unemployment, or disability laws. ERISA also does not cover plans maintained outside the United States primarily for the benefit of nonresident aliens or unfunded excess benefit plans.

Basic Provisions/Requirements

ERISA sets uniform minimum standards to ensure that employee benefit plans are established or maintained in a fair and financially sound manner. In addition, employers have an obligation to provide promised benefits and satisfy ERISA's requirements for managing and administering private retirement and welfare plans.

EBSA, together with the Department of the Treasury's Internal Revenue Service (IRS), has the statutory and regulatory authority to ensure that workers receive the promised benefits. EBSA has principal jurisdiction over Title I of ERISA, which requires persons and entities that manage and control plan funds to:

  • Manage plans for the exclusive benefit of participants and beneficiaries;
  • Carry out their duties in a prudent manner and refrain from conflict of interest transactions expressly prohibited by law;
  • Comply with limitations on certain plans' investments in employer securities and properties;
  • Fund benefits in accordance with the law and plan rules;
  • Report and disclose information on the operations and financial condition of plans to the government and participants; and
  • Provide documents required in the conduct of investigations to ensure compliance with the law.

The Department of Labor also has jurisdiction over the prohibited transaction provisions of Title II of ERISA. However, the IRS generally administers the rest of Title II of ERISA, as well as the standards of Title I of ERISA that address vesting, participation, nondiscrimination, and funding.

Fiduciary Standards. Part 4 of Title I sets forth standards and rules for the conduct of plan fiduciaries. In general, persons who render investment advice or exercise discretionary authority or control over management of a plan or disposition of its assets are "fiduciaries" for purposes of Title I of ERISA. Fiduciaries are required, among other things, to discharge their duties solely in the interest of plan participants and beneficiaries and for the exclusive purpose of providing benefits and defraying reasonable expenses of administering the plan. In discharging their duties, fiduciaries must act prudently and in accordance with documents governing the plan, to the extent such documents are consistent with ERISA.

ERISA prohibits certain transactions between an employee benefit plan and "parties in interest," which include the employer and others who may be in a position to exercise improper influence over the plan, and such transactions may trigger civil monetary penalties under Title I of ERISA. The Internal Revenue Code ("Code") also prohibits most of these transactions, and it imposes an excise tax on "disqualified persons" (whose definition generally parallels that of parties in interest) who participate in such transactions.

Exemptions. Both ERISA and the Code contain various statutory exemptions from the prohibited transaction rules and give the Departments of Labor and Treasury, respectively, authority to grant administrative exemptions and establish exemption procedures. Reorganization Plan No. 4 of 1978 transferred the Department of Treasury's authority over prohibited transaction exemptions to the Department of Labor, with certain exceptions.

The statutory exemptions generally include loans to participants, the provision of services needed to operate a plan for reasonable compensation, loans to employee stock ownership plans, and investment with certain financial institutions regulated by other state or Federal agencies. (See ERISA Section 408 for the conditions of the exemptions.) The Department of Labor may grant administrative exemptions on a class or individual basis for a wide variety of proposed transactions with a plan. Applications for individual exemptions must include, among other information the following:

  • A detailed description of the exemption transaction and the parties for whom an exemption is requested
  • The reasons a plan would have for entering into the transaction
  • The percentage of assets involved in the exemption transaction
  • The names of persons with investment discretion
  • The extent of plan assets already invested in loans to, property leased by, and securities issued by parties in interest involved in the transaction
  • Copies of all contracts, agreements, instruments, and relevant portions of plan documents and trust agreements bearing on the exemption transaction
  • Information about plan participation in pooled funds when the exemption transaction involves such funds
  • A declaration by the applicant, under penalty of perjury, attesting to the truth of representations made in such exemption submissions
  • Statement of consent by third‑party experts acknowledging that their statement is being submitted to the Department as part of an exemption application

The Department's exemption procedures are set forth at 29 CFR 2570.30 through 2570.51 (/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/text-idx^Q^node=sp29.9.2570.b|rgn=div6&exitTitle=29%20CFR%202570.30%20through%202570.51&fedpage=yes).

Continuation of Health Coverage. The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) included provisions for continuing health care coverage. These provisions, which are codified in Part 6 of Title I of ERISA, apply to group health plans of employers with 20 or more employees on a typical working day in the previous calendar year.

COBRA contains provisions giving certain former employees, retirees, spouses, former spouses, and dependent children ("qualified beneficiaries") the right to temporary continuation of health coverage at group rates.  This coverage, however, is only available when coverage is lost due to certain specific events ("qualifying events") such as termination of employment.  Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. 

Plans must give covered individuals an initial general notice informing them of their rights under COBRA and describing the law. The law also obliges plan administrators, employers, and qualified beneficiaries to provide notice of certain "qualifying events." In most instances of employee death, termination, reduced hours of employment, entitlement to Medicare, or bankruptcy, the employer must provide a specific notice to the plan administrator. The plan administrator must then advise the qualified beneficiaries of the opportunity to elect continuation coverage.

The Department of Labor's regulatory and interpretive jurisdiction over the COBRA provisions is limited to the COBRA notification and disclosure provisions.

Jurisdiction of the Internal Revenue Service. The IRS has regulatory and interpretive responsibility for all provisions of COBRA not under the Department of Labor's jurisdiction. In addition, the IRS generally administers and interprets the ERISA provisions relating to participation, vesting, funding, and benefit accrual, contained in parts 2 and 3 of Title I.

Health Laws Under Part 7 of ERISA

Many Federal laws have been enacted to amend ERISA to provide important protections for participants and beneficiaries of group health plans and health insurance coverage offered in connection with group health plans. These protections are generally found under Part 7 of Subtitle B of title I of ERISA.

The Patient Protection and Affordable Care Act (the Affordable Care Act or ACA). The Affordable Care Act amended ERISA to incorporate several health coverage market reforms. These provisions are set forth in Public Health Service Act sections 2701 through 2728, which are incorporated by reference in ERISA section 715. These provisions include rules relating to the prohibition of preexisting condition exclusions, the prohibition of lifetime and annual dollar limits for essential health benefits, the prohibition of rescissions, and required coverage of certain preventive services without cost sharing.

Health Insurance Portability and Accountability Act of 1996. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) amended ERISA to provide for improved portability and continuity of health coverage connected with employment, among other things. These provisions include rules relating to special enrollment rights, and prohibition of discrimination against individuals based on health status.

The Newborns' and Mothers' Health Protection Act of 1996 (Newborns' Act) requires plans that offer maternity coverage to pay for at least a 48 hour hospital stay in connection with childbirth (a 96 hour stay in connection with a cesarean section).

The Women's Health and Cancer Rights Act (WHCRA) contains protection for patients who elect breast reconstruction in connection with a mastectomy. For plan participants and beneficiaries receiving benefits in connection with a mastectomy, plans offering coverage for a mastectomy must also cover reconstructive surgery and other benefits related to a mastectomy.

The Mental Health Parity Act of 1996 (MHPA) provides for parity in the application of aggregate lifetime and annual dollar limits on mental health benefits with dollar limits on medical/surgical benefits. Generally, group health plans offering mental health benefits cannot set annual or lifetime dollar limits on mental health benefits that are lower than any such dollar limits for medical and surgical benefits.

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) expanded the protections of MHPA to financial requirements (e.g., copayments or deductibles)and treatment limitations (e.g., visit limits). Any type of financial requirements or treatment limitations imposed on mental health or substance use disorder benefits in a classification can be no more restrictive than the predominant requirements or limitations applied to substantially all medical and surgical benefits covered by a plan in the classification. In addition, there are rules regarding nonquantitative treatment limitations (such as prior authorization requirements).

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits group health plans and group health insurance issuers from discriminating in health coverage based on genetic information. Plans and issuers may not use genetic information to adjust premium or contribution amounts for the group covered under the plan, request or require an individual or their family members to undergo a genetic test, or request, require, or purchase genetic information for underwriting purposes or prior to or in connection with an individual's enrollment in the plan.

Michelle's Law, passed in 2008, prohibits group health plans from terminating coverage for a dependent child who has lost student status as a result of a medically necessary leave of absence. Plans must continue to provide coverage for up to one year, or until coverage would otherwise terminate under the plan. Plans are allowed to require physician certification of the medical necessity for the leave of absence.

The Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) requires group health plans and group health insurance issuers to permit an employee or dependent that is eligible for but not enrolled in the plan to enroll when the employee or dependent is covered under Medicaid or CHIP and loses that coverage as a result of loss of eligibility or when the employee or dependent becomes eligible for Medicaid or CHIP assistance with respect to coverage under the group health plan. CHIPRA also created new notice requirements related to these special enrollment rights.

Employee Rights

The Act grants employees several important rights. Among them are the right to receive information about their pension or health benefit plans, to participate in timely and fair processes for benefit claims, to elect to temporarily continue group health coverage after losing coverage, to receive certificates verifying health coverage under a plan, and to recover benefits due under the plan.

Notices/Posters

Posters.  There are no Federal poster requirements.

Notices.  ERISA contains several notice requirements for health plans including, but not limited to, a Summary Plan Description (SPD), special enrollment notice, and certificates of creditable coverage.  Other notices required by COBRA, HIPAA, WHCRA, the Newborns' Act, and Michelle's Law may be required depending on the number of employees and the benefits offered by the plan. The Reporting and Disclosure Guide for Employee Benefit Plans(https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/reporting-and-disclosure-guide-for-employee-benefit-plans.pdf) can be used as a quick reference tool for certain basic disclosure requirements under ERISA. 

EBSA has also created several sample and model notices: 

Posters.  There are no Federal poster requirements.

Notices.  ERISA contains several notice requirements for retirement plans, such as the summary plan description, individual benefit statements, and the summary annual report.  The Reporting and Disclosure Guide for Employee Benefit Plans(https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/reporting-and-disclosure-guide-for-employee-benefit-plans.pdf) has been prepared by EBSA with assistance from PBGC. It is intended to be used as a quick reference tool for certain basic disclosure requirements under ERISA.  Not all ERISA disclosure requirements are reflected in this guide. For example, the guide, as a general matter, does not focus on disclosures required by the Internal Revenue Code or the provisions of ERISA for which the IRS has regulatory and interpretive authority. 

Recordkeeping

ERISA contains recordkeeping requirements. An accurate recordkeeping system will track and properly attribute contributions, expenses, and benefit distributions. If a contract administrator or other entity assists in managing the plan, that entity may help keep the required records. In addition, a recordkeeping system will help the plan administrator, or provider prepare the plan's annual return/report that must be filed with the Federal Government. For more information visit the EBSA Compliance Assistance page(https://www.dol.gov/agencies/ebsa/employers-and-advisers/small-business/compliance-assistance).

Posters.  There are no Federal poster requirements.

Notices.  ERISA contains several notice requirements for retirement plans, such as the summary plan description, individual benefit statements, and the summary annual report.  The Reporting and Disclosure Guide for Employee Benefit Plans(https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/reporting-and-disclosure-guide-for-employee-benefit-plans.pdf) has been prepared by EBSA with assistance from PBGC. It is intended to be used as a quick reference tool for certain basic disclosure requirements under ERISA.  Not all ERISA disclosure requirements are reflected in this guide. For example, the guide, as a general matter, does not focus on disclosures required by the Internal Revenue Code or the provisions of ERISA for which the IRS has regulatory and interpretive authority. 

Reporting

EBSA, in conjunction with the IRS and the Pension Benefit Guaranty Corporation (PBGC), publishes the Form 5500 Annual Return/Report(https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/form-5500) forms used by plan administrators to satisfy various annual reporting obligations under ERISA and the Internal Revenue Code. Many health and welfare benefit plans that meet certain conditions do not have to file the Form 5500 Annual Return/Report. However, for those that do, EBSA publishes the forms used by plan administrators to satisfy various annual reporting obligations under ERISA and the Internal Revenue Code. The Form 5500 is filed and processed under the ERISA Filing Acceptance System (EFAST). Beginning with the 2009 plan year filings, there are changes to the Form 5500 and required electronic filing using the modernized EFAST2 System. For more information, see the EFAST Web site.

In addition, the Reporting and Disclosure Guide for Employee Benefit Plans(https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/reporting-and-disclosure-guide-for-employee-benefit-plans.pdf) can be used as a quick reference tool for certain basic reporting requirements under ERISA.

Posters.  There are no Federal poster requirements.

Notices.  ERISA contains several notice requirements for retirement plans, such as the summary plan description, individual benefit statements, and the summary annual report.  The Reporting and Disclosure Guide for Employee Benefit Plans(https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/reporting-and-disclosure-guide-for-employee-benefit-plans.pdf) has been prepared by EBSA with assistance from PBGC. It is intended to be used as a quick reference tool for certain basic disclosure requirements under ERISA.  Not all ERISA disclosure requirements are reflected in this guide. For example, the guide, as a general matter, does not focus on disclosures required by the Internal Revenue Code or the provisions of ERISA for which the IRS has regulatory and interpretive authority. 

Compliance Assistance Available

EBSA has numerous general publications designed to help employers and employees understand their obligations and rights under ERISA. A list of EBSA booklets and pamphlets is available from EBSA's Home Page(https://www.dol.gov/ebsa) and through EBSA's toll-free publications line at 1-866-444-EBSA (1-866-444-3272).

EBSA's national offices(https://www.dol.gov/agencies/ebsa/about-ebsa/about-us/organization-chart) and field offices(https://www.dol.gov/agencies/ebsa/about-ebsa/about-us/organization-chart#section13) offer individualized assistance for persons seeking information and assistance on benefits and rights under employee benefit plans. EBSA also issues advisory opinions and information letters in response to requests from individuals and organizations. Advisory opinions apply the law to a specific set of facts, while information letters merely call attention to well-established principles or interpretations. Further information about these programs is contained in EBSA's booklet on "Customer Service Standards."

In addition, employee benefit plan documents and other materials are available from the EBSA Public Disclosure Room. This facility may be used to view and to obtain copies of materials on file. Materials include: Form 5500 Series reports, Apprentice and Other Training Plans notices, "Top Hat" plan statements, advisory opinions, exemptions, announcements, and transcripts of public hearings and proceedings. The EBSA Public Disclosure Room is open to the public Monday through Friday, from 8:30 a.m. to 4:30 p.m., except Federal holidays. Copies of materials are available at a cost of 15 cents per page by ordering in person or writing to:

U.S. Department of Labor
EBSA Public Disclosure Room
200 Constitution Avenue NW, Room N 1515
Washington, D.C. 20210.

Fax requests can be sent to 202-501-4098. Requests should include pertinent information to help find documents, such as titles and dates. For 5500 and report searches, the name of the company/entity, the type of plan, the nine-digit EIN and three-digit Plan Number, state, and year(s) requested should be provided. Also include the requestor's name, address, and contact information. Summary Plan Descriptions (SPD) are no longer filed with EBSA. The 1977-1998 collection of SPD records have been transferred to the Pension Benefit Guaranty Corporation (PBGC) and can be requested by submitting a request to spdrequest@pbgc.gov. Given the complexity of ERISA requirements, employers may wish to seek the assistance of an attorney, CPA firm, investment or brokerage firm, and other employee benefit consultants.

The Department of Labor provides employers and others with clear and easy-to-access information and assistance on how to comply with the Employee Retirement Income Security Act. Compliance assistance related to the Act, includes:

Relation to State, Local, and Other Federal Laws

Part 5 of Title I states that the provisions of ERISA Titles I and IV supersede state and local laws which "relate to" an employee benefit plan. ERISA, however, does not preempt certain state and local insurance, banking or securities laws, including state insurance regulation of multiple employer welfare arrangements (MEWAs). MEWAs generally constitute employee welfare benefit plans or other arrangements providing welfare benefits to employees of more than one employer, not pursuant to a collective bargaining agreement.

In addition, ERISA's general prohibitions against assignment or alienation of retirement benefits do not apply to qualified domestic relations orders. Plan administrators must comply with the terms of qualifying orders made pursuant to state domestic relations laws that award all or part of a participant's benefit in the form of child support, alimony, or marital property rights to an alternative payee (spouse, former spouse, child, or other dependent). Finally, group health plans covered by ERISA must provide benefits in accordance with the requirements of qualified medical child support orders issued under state domestic relations laws.

Penalties/Sanctions

ERISA confers substantial law enforcement responsibilities on the Department of Labor. Part 5 of Title I of ERISA gives the Department of Labor authority to bring a civil action to correct violations of the law, provides investigative authority to determine whether any person has violated Title I, and imposes criminal penalties on any person who willfully violates any provision of Part 1 of Title I.

EBSA has authority under ERISA Section 502 to assess civil penalties for a number of different violations. For instance, EBSA has authority under ERISA Section 502(c)(2) to assess civil penalties for reporting violations. A penalty of up to $1,100 per day may be assessed against plan administrators who fail or refuse to comply with annual reporting requirements. Section 502(i) gives the agency authority to assess civil penalties against parties in interest who engage in prohibited transactions with welfare and nonqualified retirement plans. The penalty can range from five percent to 100 percent of the amount involved in a transaction.

A parallel provision of the Code directly imposes an excise tax against disqualified persons, including employee benefit plan sponsors and service providers, who engage in prohibited transactions with tax‑qualified retirement plans.

Finally, Section 502(l) requires the Department of Labor to assess mandatory civil penalties equal to 20 percent of any amount recovered with respect to fiduciary breaches resulting from either a settlement agreement with the Department of Labor or a court order as the result of a lawsuit by the Department of Labor.

DOL Contacts

Employee Benefits Security Administration (EBSA)
Contact EBSA
Tel: 1-866-444-EBSA (1-866-444-3272); TTY: 1-877-889-5627

Fair Labor Standards Act of 1938 (FLSA), as amended

(29 USC §201 et seq.; 29 CFR Parts 510 to 794)

Who is Covered

The Fair Labor Standards Act (FLSA or Act) is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 135 million workers, both full time and part time, in the private and public sectors.

The Act covers enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a threshold of $500,000 in annual dollar volume of business applies to be covered (i.e., the Act does not cover enterprises with less than this amount of business).

In addition, the Act covers the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and Federal, state, and local government agencies.

Employees of firms that do not meet the $500,000 annual dollar volume threshold may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.

In addition, the Act covers domestic service employees, such as housekeepers, cooks, gardeners, nurses, or home health aides, if they work in a private home. These employees are subject to the minimum wage and overtime provisions if they receive at least $2,200 in 2020 from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers. (This calendar year wage threshold is set by the Social Security Administration each year, and can be found at https://www.ssa.gov/oact/cola/CovThresh.html). For additional coverage information, see the Wage and Hour Division Fact Sheet #14: Coverage Under the FLSA .

The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. Because the exemptions are narrowly defined, employers should check the exact terms and conditions for any applicable exemption by contacting their local Wage and Hour Division office.

The following are examples of employees exempt from both the minimum wage and overtime pay requirements:

  • Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor's regulations)
  • Employees of certain seasonal amusement or recreational establishments
  • Employees of certain small newspapers and switchboard operators of small telephone companies
  • Seamen employed on foreign vessels
  • Employees engaged in fishing operations
  • Employees engaged in newspaper delivery
  • Farm workers employed on small farms (i.e., those that used less than 500 "man days" of farm labor in any calendar quarter of the preceding calendar year)
  • Casual babysitters
  • Persons employed solely by the individual receiving services (not an agency, non-profit, or other third party employer) primarily providing fellowship and protection (companionship services) to seniors and/or individuals with injuries, illnesses, or disabilities

The following are examples of employees exempt from the overtime pay requirements only:

  • Certain commissioned employees of retail or service establishments
  • Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non manufacturing establishments primarily engaged in selling these items to ultimate purchasers
  • Auto, truck, or farm implement parts clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
  • Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans
  • Announcers, news editors, and chief engineers of certain non metropolitan broadcasting stations
  • Domestic service employees solely employed by the individual, family, or household receiving services (not an agency or other third party employer) who reside in the private home where they provide services
  • Employees of motion picture theaters
  • Farmworkers

Certain employees may be partially exempt from the overtime pay requirements. These include:

  • Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors
  • Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14 day periods in lieu of 7 day workweeks (if the employees are paid overtime premium pay as required by the Act for all hours worked over eight in a day or 80 in the 14 day work period, whichever is the greater number of overtime hours)
  • Employees who lack a high school diploma, or who have not completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that are not job specific. Employers may require such employees to engage in these activities up to 10 hours in a workweek. Employers must pay regular wages for the hours spent in such training but need not pay overtime premium pay for training hours

Basic Provisions/Requirements

The Act requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $7.25 per hour. Youths under 20 years of age may be paid a minimum wage of not less than $4.25 per hour during the first 90 consecutive calendar days of employment with an employer. Employers may not displace any employee to hire someone at the youth minimum wage. For additional information regarding the use of the youth minimum wage provisions, see the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage - FLSA.

Employers may pay employees on a piece rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate and overtime for hours worked in excess of 40 hours in a workweek. Employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) may consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain other requirements. For a full listing of the requirements an employer must meet to use the tip credit provision, see the Wage and Hour Division Fact Sheet #15: Tipped Employees Under the FLSA.

The Act also permits the employment of certain individuals at wage rates below the statutory minimum wage under certificates issued by the Department of Labor:

  • Student learners (vocational education students);
  • Full time students in retail or service establishments, agriculture, or institutions of higher education; and
  • Individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities, including those related to age or injury.

The Act does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work, as long as the employee is at least 16 years old. Similarly, the Act does not limit the number of hours of overtime that may be scheduled. However, the Act requires employers to pay covered employees not less than one and one half times their regular rate of pay for all hours worked in excess of 40 in a workweek, unless the employees are otherwise exempt. For additional information regarding overtime pay requirements, see the Wage and Hour Division Fact Sheet #23: Overtime Pay Requirements of the FLSA.

The Act prohibits performance of certain types of work in an employee's home unless the employer has obtained prior certification from the Department of Labor. Restrictions apply in the manufacture of knitted outerwear, gloves and mittens, buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and health hazards are not involved). Employers wishing to employ homeworkers in these industries are required to provide written assurances to the Department of Labor that they will comply with the Act's wage and hour requirements, among other things.

The Act generally prohibits manufacture of women's apparel (and jewelry under hazardous conditions) in the home except under special certificates that may be issued when the employee cannot adjust to factory work because of age or disability (physical or mental), or must care for a disabled individual in the home.

Special wage and hour provisions apply to state and local government employment. For more information regarding these special provisions, see the Wage and Hour Division Fact Sheet #7: State and Local Governments Under the FLSA.

Employee Rights

Employees may find out how to file a complaint by contacting the local Wage and Hour Division office(https://www.dol.gov/agencies/whd/contact/local-offices), or by calling the program's toll-free help line at 1-866-4-US-WAGE (1-866-487-9243). In addition, an employee may file a private suit, generally for the previous two years of back pay (three years in the case of a willful violation) and an equal amount as liquidated damages, plus attorney's fees and court costs.

It is a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint with an employer or the Wage and Hour Division or for participating in a legal proceeding under the Act.

Notices/Posters

Every employer of employees subject to the FLSA's minimum wage provisions must post, and keep posted, a notice(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(https://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(https://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(https://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(https://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(https://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(https://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(https://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf).  There is no requirement to post the poster in languages other than English(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm).

Covered employers are required to post the general Fair Labor Standards Act poster. However, certain industries have posters designed specifically for them. Employers of Agricultural Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster. There are also posters for American Samoa (PDF)(https://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and Northern Mariana Islands (PDF)(https://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf). 

Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster(https://www.dol.gov/agencies/whd/posters/section-14c).

Recordkeeping

Every employer covered by the FLSA must keep certain records for each of its covered employees. Employers must keep records on wages, hours, and other information as set forth in the Department of Labor's regulations. Most of this data is the type that employers generally maintain in ordinary business practice.

There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:

  • Employee's full name, as used for Social Security purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records
  • Address, including zip code
  • Birth date, if younger than 19
  • Sex and occupation
  • Time and day of week when employee's workweek begins
    • Total wages paid each pay period
  • Date of payment and the pay period covered by the payment

The following is a listing of some additional information that an employer must maintain unless the employee is an executive, administrative, or professional employee (including teachers and academic administrative personnel in elementary and secondary schools) or outside sales employee who is exempt from the Act's minimum wage and overtime requirements:

  • Hours worked each day and total hours worked each workweek
  • Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
  • Regular hourly pay rate
  • Total daily or weekly straight-time earnings
  • Total overtime earnings for the workweek
  • All additions to or deductions from the employee's wages

For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA. Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Reporting

The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Compliance Assistance Available

More detailed information about the FLSA, including copies of explanatory brochures and regulatory and interpretative materials, is available on the Wage and Hour Division's Web site(https://www.dol.gov/whd/), or by contacting a local Wage and Hour Division office(https://www.dol.gov/agencies/whd/contact/local-offices). Another compliance assistance resource, the elaws Fair Labor Standards Act Advisor(/elaws/flsa.htm), helps answers questions about workers and businesses that are subject to the FLSA.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available are:

Relation to State, Local, and Other Federal Laws

State laws on wages and hours also apply to employment subject to this Act. When both this Act and a state law apply, the law setting the higher standards must be observed. For example, if a state law requires a minimum wage higher than the minimum wage required by the Act, the employer must pay the higher minimum wage.

Penalties/Sanctions

In addition to the rights and remedies available to persons through private suits for violations of the Act, the Department of Labor uses a variety of remedies to enforce compliance with the Act's requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees.

Willful violators may be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties for each violation.

For child labor violations, employers are subject to a civil money penalty for each violation. In addition, employers are subject to a civil money penalty for each violation that causes the death or serious injury of any minor employee - such penalty may be doubled when the violations are determined to be willful or repeated.

When the Department of Labor assesses a civil money penalty, the employer has the right to file an exception to the determination within 15 days of receipt of the notice. If an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. If an exception is not filed, the penalty becomes final.

The Department of Labor may also bring suit for back pay and an equal amount in liquidated damages, and it may obtain injunctions to restrain persons from violating the Act.

The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions. The Department of Labor may seek to enjoin such shipments.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Fair Labor Standards Act of 1938 (FLSA), as amended

(29 USC §201 et seq.; 29 CFR Parts 570 to 580)

Child Labor (Nonagricultural Work)

Who is Covered

The child labor provisions of the Fair Labor Standards Act (FLSA) are administered by the Wage and Hour Division (WHD). These provisions are designed to protect the educational opportunities of minors and to prohibit their employment in jobs and under conditions detrimental to their health and well‑being. In nonagricultural work, the child labor provisions apply to enterprises with employees engaging in interstate commerce, producing goods for interstate commerce, or handling, selling, or working on goods or materials that have been moved in or produced for interstate commerce. For most firms, an annual dollar volume of business test of not less than $500,000 applies.

Employees of firms that do not meet the $500,000 annual dollar volume test may be subject to the FLSA's child labor provisions in any workweek in which they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.

The Act covers the following employers regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled, or gifted; preschools, elementary and secondary schools, and institutions of higher education; and Federal, state, and local government agencies.

While 16 is the minimum age for most nonfarm work, minors aged 14 and 15 may work outside of school hours in certain occupations under certain conditions. Minors may, at any age: deliver newspapers; perform in radio, television, movies, or theatrical productions; work for their parents in their solely owned nonfarm businesses (except in mining, manufacturing, or in any other occupation declared hazardous by the Secretary); or gather evergreens and make evergreen wreaths.

Basic Provisions/Requirements

The child labor provisions of the Act include restrictions on hours of work and occupations for youths under age 16. These provisions also set forth 17 hazardous occupations orders for jobs that the Secretary has declared too dangerous for those under age 18 to perform.

The permissible jobs and hours of work, by age, in nonfarm work are as follows:

  • Minors age 18 or older are not subject to restrictions on jobs or hours
  • Minors age 16 and 17 may perform any job not declared hazardous by the Secretary, and are not subject to restrictions on hours
  • Minors age 14 and 15 may work outside school hours in various nonmanufacturing, non-mining, nonhazardous jobs listed by the Secretary in regulations published at 29 CFR Part 570 under the following conditions: no more than three hours on a school day, 18 hours in a school week, eight hours on a non-school day, or 40 hours in a non-school week. In addition, they may not begin work before 7 a.m. or work after 7 p.m., except from June 1 through Labor Day, when evening hours are extended until 9 p.m. The permissible work for 14 and 15 year olds is limited to those jobs specifically listed in the Secretary's regulations. WHD's regulations provide some exceptions to these limitations on hours worked for 14 and 15 year olds enrolled in an approved Work Experience and Career Exploration Program (WECEP) or Work Study Program (WSP).

Detailed information on the occupations determined to be hazardous by the Secretary is available from a local Wage and Hour Division office and in 29 CFR Part 570.

By regulation, employers must keep records of the dates of birth of employees under age 19, their daily starting and quitting times, their daily and weekly hours of work, and their occupations. The FLSA provides that an employer that has on file an officially-issued employment or age certificate showing that the minor is the minimum age required by the FLSA is not liable for violating the child labor provisions if that documentation proves to be incorrect. Age or employment certificates issued under most state laws are generally acceptable for this purpose. See 29 CFR 570.5.

Employee Rights

The FLSA also gives an employee the right to file a complaint with the Wage and Hour Division and testify or in other ways cooperate with an investigation or legal proceeding without being fired or discriminated against in any other manner.

Notices/Posters

Every employer of employees subject to the FLSA's minimum wage provisions must post, and keep posted, a notice(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(https://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(https://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(https://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(https://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(https://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(https://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(https://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf).  There is no requirement to post the poster in languages other than English(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm).

Covered employers are required to post the general Fair Labor Standards Act poster; however, certain industries have posters designed specifically for them.  Employers of Agricultural Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster.  There are also posters for American Samoa (PDF)(https://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and Northern Mariana Islands (PDF)(https://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf). 

Every employer who employs workers with disabilities under special minimum wage certificates is also required to post the Employee Rights for Workers with Disabilities/Special Minimum Wage Poster(https://www.dol.gov/agencies/whd/posters/section-14c).

Recordkeeping

Every employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered(/elaws/whd/flsa/overtime/glossary.htm?wd=covered), nonexempt(/elaws/whd/flsa/overtime/glossary.htm?wd=non_exempt) worker.

There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:

  • Employee's full name, as used for Social Security purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records
  • Address, including zip code
  • Birth date, if younger than 19
  • Sex and occupation
  • Time and day of week when employee's workweek begins
  • Hours worked each day and total hours worked each workweek
  • Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
  • Regular hourly pay rate
  • Total daily or weekly straight-time earnings
  • Total overtime earnings for the workweek
  • All additions to or deductions from the employee's wages
  • Total wages paid each pay period
  • Date of payment and the pay period covered by the payment

For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements under the FLSA(https://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Reporting

The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the FLSA. Among the many resources available are:

Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Wage and Hour Division Home Page(https://www.dol.gov/whd).

Relation to State, Local, and Other Federal Laws

Many states have child labor laws. Nothing in the FLSA excuses noncompliance with a state law that establishes a higher standard than that provided in the FLSA. See 29 U.S.C. 218(a).

Penalties/Sanctions

The child labor "hot goods" provision of the Act prohibits the shipment or delivery of goods in interstate commerce that were produced in or about an establishment where a child labor violation occurred in the past 30 days. It is also a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act.

Employers are subject to a civil money penalty of up to $11,000 per worker for each violation of the child labor provisions. In addition, employers are subject to a civil money penalty of $50,000 for each violation occurring after May 21, 2008 that causes the death or serious injury of any minor employee - such penalty may be doubled, up to $100,000, when the violations are determined to be willful or repeated. When a civil money penalty is assessed, employers have the right to file an exception to the determination within 15 days of receipt of the notice of such penalty. When an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. Either party may appeal the decision of the Administrative Law Judge to the Department of Labor's Administrative Review Board. If an exception is not filed within the 15 days, the penalty becomes final.

The Act also provides for a criminal fine of up to $10,000 upon conviction for a willful violation. For a second conviction for a willful violation, the Act provides for a fine of not more than $10,000 and imprisonment for up to six months, or both. The Secretary may also bring suit to obtain injunctions to restrain persons from violating the Act.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Fair Labor Standards Act of 1938 (FLSA), as amended

(29 USC §201 et seq.; 29 CFR Parts 525)

 Section 14 (c)

Who is Covered

The Fair Labor Standards Act (FLSA) is administered and enforced by the Wage and Hour Division (WHD). The Act establishes minimum wage, overtime pay, recordkeeping, and youth employment standards generally affecting full-time and part-time workers in the private sector and in Federal, state, and local governments. Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay subminimum wages - wages less than the Federal minimum wage - to workers who have disabilities for the work being performed. The certificate also allows the payment of wages that are less than the applicable prevailing wage to workers who have disabilities for the work being performed on contracts subject to the McNamara-O'Hara Service Contract Act (SCA) and the Walsh-Healey Public Contracts Act (PCA). Payment of wages under a Section 14(c) certificate may be subject to the requirements of Executive Order 13658, which establishes a minimum wage for work performed on or in connection with certain covered government contracts.

Basic Provisions/Requirements

Employers must obtain an authorizing certificate from the Wage and Hour Division prior to paying subminimum wages to employees who have disabilities for the work being performed. To apply for a certificate, employers must submit a properly completed application (Form WH-226), Application for Authority to Employ Workers with Disabilities at Special Minimum Wages), as well as Form WH-226A, Supplemental Data Sheet for Application for Authority to Employ Workers with Disabilities at Special Minimum Wages and the required supporting documentation, to:

United States Department of Labor
Wage and Hour Division
230 South Dearborn Street, Room 530
Chicago, Illinois, 60604-1757
1-312-596-7195

Certificates covering employees of work centers and patient workers normally remain in effect for two years. Certificates covering workers with disabilities placed in competitive employment situations or School Work Experience Programs (SWEPs) are issued annually.

Commensurate wage rates. Subminimum wages issued pursuant to Section 14(c) of the FLSA must be commensurate wage rates - based on the worker's individual productivity in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn. The key elements in determining commensurate rates are:

  • Determining the standard for workers who do not have disabilities - the objective gauge against which the productivity of the worker with a disability is measured
  • Determining the prevailing wage - the wage paid to experienced workers who do not have disabilities for the same or similar work and who are performing such work in the area. Most SCA contracts include a wage determination specifying the prevailing wage rates to be paid for work on the SCA contract
  • Evaluating the quantity and quality of the productivity of the worker with the disability

All commensurate wage rates must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months and a new prevailing wage survey must be conducted at least every twelve months.

Employee Rights

Any employee paid a subminimum wage (or his or her parent or guardian) may petition the Secretary of Labor, under FLSA Section 14(c)(5), to have the commensurate wage rate reviewed to determine if the wage is justified. The review will be conducted by a U.S. Department of Labor Administrative Law Judge. Such petitions are completely independent of any enforcement action that may be undertaken by the Wage and Hour Division. Although the petition does not have to follow a particular format or form, it must be signed by the individual (or his or her parent or guardian) and should contain the name and address of the individual filing the petition and the name and address of his or her employer

.

The Wage and Hour Division's role in the petition process is solely to serve as a conduit—the means through which the petition is forwarded to the Office of the Chief Administrative Law Judge. The Wage and Hour Division does not serve as a party in this matter. It does not represent either the employee with a disability or his or her employer. In all matters relating to the propriety of a commensurate wage rate, the burden of proof rests with the employer. See 29 CFR Part 525.22 for more information.

Notices/Posters

Notices. Each worker with a disability receiving a subminimum wage under FLSA Section 14(c), and, where appropriate, the parent or guardian of such worker, shall be informed orally and in writing by the employer of the terms of the certificate under which such worker is employed. In addition, employers of workers with disabilities receiving subminimum wages must display the Wage and Hour Division poster, Employee Rights for Workers with Disabilities Paid at Special Minimum Wages (WH Publication 1284). This poster explains the conditions under which subminimum wages may be paid. The poster must be posted in a conspicuous place on the employer's premises where employees and the parents and guardians of workers with disabilities can readily see it.

Additionally, each worker with a disability and, where appropriate, a parent or guardian of the worker, must be informed, orally and in writing, of the terms of the certificate under which the worker is employed. This requirement may be satisfied by making copies of the certificate available.

Posters.  Every employer of employees subject to the FLSA's minimum wage provisions must post, and keep posted, a notice(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(https://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(https://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(https://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(https://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(https://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(https://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(https://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf).  There is no requirement to post the poster in languages other than English(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm).

Certain industries have posters designed specifically for them.  Employers of Agricultural Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster.  There are also posters for American Samoa (PDF)(https://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and the Commonwealth Northern Mariana Islands (PDF)(https://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf).

As discussed above, under FLSA Section 14(c), employers of workers with disabilities who are paid subminimum wages are also required to post the "Employee Rights for Workers with Disabilities Paid at Special Minimum Wages" poster

.

Recordkeeping

There are no special recordkeeping requirements for Section 14 (c). See the FLSA section above for the FLSA recordkeeping requirements.

Reporting

The required records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Fair Labor Standards Act. Among the many resources available are:

Relation to State, Local, and Other Federal Laws

The issuance of a certificate under the provisions of FLSA Section 14(c) for payment of subminimum wages does not excuse noncompliance with any other Federal or state law or municipal ordinance establishing higher minimum wage standards.

Penalties/Sanctions

Section 14(c) certificates can be retroactively revoked if it is found that false statements were made or facts were misrepresented in obtaining the certificate or if it is found that any of the provisions of the FLSA, SCA, or the terms of the certificate have been violated.

The Department of Labor uses a variety of remedies to enforce compliance with the Act's requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees.

The Department of Labor may also bring suit for back pay and it may obtain injunctions to restrain persons from violating the Act.

The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or subminimum wage provisions of the FLSA.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Family and Medical Leave Act of 1993 (FMLA)

(29 USC §2601 et seq.; 29 CFR Part 825)

Who is Covered

The Family and Medical Leave Act (FMLA) is administered by the Wage and Hour Division (WHD). The FMLA provides a means for employees to balance their work and family responsibilities by taking unpaid, job-protected leave for certain reasons. The Act is intended to promote the stability and economic security of families as well as the nation's interest in preserving the integrity of families.

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year.

The law also covers all public agencies (state and local governments) and local education agencies (schools, whether public or private). These employers do not need to meet the "50-employee" test. Title II of FMLA covers most Federal employees, who are subject to regulations(http://www.opm.gov/oca/leave/HTML/fmlafac2.asp) issued by the Office of Personnel Management.

To be eligible for FMLA leave, an individual must meet the following criteria:

  • Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;
  • Have worked at least 12 months (which do not have to be consecutive) for the employer; and
  • Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave is to begin. 

An employer need not count employment prior to a break in service of seven years or more unless there was a written agreement between the employer and employee (including a collective bargaining agreement) to rehire the employee, or the break in service was due to fulfillment of military service in the National Guard or Reserves. 

Basic Provisions/Requirements

The FMLA entitles eligible employees of covered employers to take job-protected, unpaid leave for specified family and medical reasons.  Eligible employees are entitled to:

  • Twelve workweeks of leave in any 12-month period for:
     
    • Birth and care of the employee's child, within one year of birth
    • Placement with the employee of a child for adoption or foster care, within one year of the placement
    • Care of an immediate family member (spouse, child, parent) who has a serious health condition
    • For the employee's own serious health condition that makes the employee unable to perform the essential functions of his or her job
    • Any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the U.S. National Guard or Reserves in support of a contingency operation
       
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (Military Caregiver Leave)

If an employee was receiving group health benefits when leave began, an employer must maintain them at the same level and in the same manner during periods of FMLA leave as if the employee had continued to work. An employee may elect (or the employer may require) the substitution of any accrued paid leave (vacation, sick, personal, etc.) for periods of unpaid FMLA leave.  Substitution means the accrued paid leave runs concurrently with the FMLA leave period.  An employee's ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.

Employees may take FMLA leave intermittently or on a reduced leave schedule (that is, in blocks of time less than the full amount of the entitlement) when medically necessary or when the leave is due to a qualifying exigency. Taking intermittent leave for the placement for adoption or foster care of a child is subject to the employer's approval. Intermittent leave taken for the birth of a child is also subject to the employer's approval.  However, employer approval is not required for intermittent or reduced schedule leave that is medically necessary due to pregnancy, a serious health condition, or the serious illness or injury of a covered servicemember. Employer approval also is not required when intermittent or reduced schedule leave is necessary due to a qualifying exigency.

When the need for leave is foreseeable, an employee must give the employer at least 30 days notice, or as much notice as is practicable. When the leave is not foreseeable, the employee must provide notice as soon as practicable in the particular circumstances. An employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. In requesting leave an employee need not specifically reference the FMLA but must provide sufficient information for the employer to reasonably determine whether the FMLA may apply to the leave request. By contrast, when the employee seeks leave for a qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.

An employer may require that a serious health condition, or a serious illness or injury of a covered servicemember, be supported by a certification from the employee's health care provider, the employee's family member's health care provider, or an authorized health care provider of the covered servicemember. An employer may also require periodic reports of the employee's status and intent to return to work during the leave. Additionally, under certain conditions, an employer may require that an employee who takes FMLA leave for his or her own serious health condition submit a "fitness for duty" certification from the employee's health care provider that the employee is able to return to work.

An employee who returns from FMLA leave is entitled to be restored to the same or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.  The employee may, but is not entitled to, accrue additional benefits during periods of unpaid FMLA leave.  However, the employer must return him or her to employment with the same benefits at the same levels as existed when leave began.

Employee Rights

The FMLA provides that eligible employees of covered employers have a right to take job-protected leave for qualifying events without interference or restraint from their employers and without being retaliated against for exercising or attempting to exercise their FMLA rights. An eligible employee has the right to have group health insurance maintained during a period of FMLA leave under the same terms and conditions as if the employee had not taken leave and has the right to be restored to the same or an equivalent position at the end of the FMLA leave.

The FMLA also gives employees the right to file a complaint with the Wage and Hour Division, file a private lawsuit under the Act (or cause a complaint or lawsuit to be filed), and testify or cooperate in other ways with an investigation or lawsuit without being fired or discriminated against in any other manner

.

Employees and other persons may file complaints with a local Wage and Hour Division office(https://www.dol.gov/agencies/whd/contact/local-offices). The Department of Labor may file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Most employees also have private rights of action, without involvement of the Department of Labor, to correct violations and recover damages through the courts.

Failure on the part of employers to follow the FMLA notice requirements, may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights.

Notices/Posters

Poster.  All covered employers are required to display and keep on display a poster explaining the provisions of the FMLA and telling employees how to file a complaint with the Wage and Hour Division of violations of the Act. The poster must be displayed prominently where employees and applicants for employment can see it .The poster and all the text must be large enough to be easily read and contain fully legible text.  Covered employers must display the poster even if no employees are eligible for FMLA leave.  

Where the employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer is required to provide the notice in a language in which the employees are literate.  To meet the posting requirements, employers may use the prototype poster prepared by the Department or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice.  Electronic posting is permitted as long as it meets all of the posting requirements.

The Department's FMLA prototype poster is available in English(https://www.dol.gov/whd/regs/compliance/posters/fmla.htm) and Spanish(https://www.dol.gov/whd/regs/compliance/posters/fmlaspan.htm). 

General notice.  If a covered employer has any eligible employees, it must also provide general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning benefits or leave rights if such written materials exist.  If such written materials do not exist, the employer may accomplish this by distributing a copy of the general notice to each new employee upon hire.  In either case, distribution may be accomplished electronically. 

An employer may duplicate the text of the Poster to meet this general notice requirement, or may use another format so long as the information provided includes, at a minimum, all of the information contained in that notice.  Where an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer must provide the general notice in a language in which the employees are literate.

Eligibility notice.  When an employee requests FMLA leave or the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances. The eligibility notice must state whether the employee is eligible for FMLA leave, and if the employee is not eligible, must state at least one reason why the employee is not eligible.

The Department of Labor makes available a Prototype Eligibility and Rights and Responsibilities Notice(https://www.dol.gov/whd/forms/wh-381.pdf) (Form WH-381), which employers may adapt as appropriate for their use to meet their eligibility and rights and responsibilities (see below) notice requirements.

Rights and Responsibilities notice. Each time the eligibility notice is provided, the employer is also required to provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. If leave has already begun, the employer should mail the notice to the employee's address of record. The employer must translate this notice in any situation where it is obligated to translate the general notice into a language in which employees are literate. The written notice must also include information on:

  • Leave may be designated and counted against the employee's annual FMLA leave entitlement if it qualifies as FMLA leave
  • The applicable 12-month period for the FMLA entitlement
  • Requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so
  • Employee's right to substitute paid leave, whether the employer will require the substitution of paid leave, the conditions related to any substitution, and the employee's entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave
  • Requirement for the employee to make any premium payments to maintain health benefits, the arrangements for making such payments, and the possible consequences of the failure to make such payments on a timely basis
  • Employee's status as a "key employee" and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial
  • Employee's rights to maintenance of benefits during the FMLA leave and to restoration to the same or an equivalent job upon return from leave
  • Employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave

The specific notice may include other information such as whether the employer will require periodic reports of the employee's status and intent to return to work, but is not required to do so. The notice of rights and responsibilities may be accompanied by any required certification form.

If the specific information provided by the notice changes, the employer must provide written notice referencing the prior notice and setting forth any of the information that has changed. This notice of changes should be provided within five business days of receipt of the employee's first notice of need for leave subsequent to any change.

The Department makes available a Prototype Eligibility and Rights and Responsibilities Notice(https://www.dol.gov/whd/forms/WH-381.pdf) (Form WH-381), which employers may adapt as appropriate for their use to meet their eligibility and rights and responsibilities notice requirements.

Designation notice. The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, such as after receiving a certification, the employer must notify the employee whether the leave is designated and will count as FMLA leave within five business days, absent extenuating circumstances. Only one designation notice for each FMLA-qualifying reason per applicable 12-month leave year is required. The employer must also notify the employee if it determines that the leave is not FMLA-qualifying and will not be designated as FMLA leave.

If the employer is requiring the employee to submit a fitness-for-duty certification to be restored to his or her job, the employer must provide notice of the requirement with the designation notice. If the employer will require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's position, the employer must indicate so in the designation notice and include a list of the essential functions. If the employer handbook or other written documents describing the employer's leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances, the employer is not required to provide written notice of this requirement, but must provide at least oral notice no later than at the time off the designation notice.

The designation notice must be in writing. The Department of Labor makes available a prototype Designation Notice(https://www.dol.gov/whd/forms/WH-382.pdf) (Form WH-382) for employer's use. If the leave is not designated as FMLA leave because it does not meet the requirements for FMLA protection, the notice that the leave is not designated FMLA may be in the form of a simple written statement. If the information provided by the employer to the employee in the designation notice changes, the employer must provide written notice of the change within five business days of receipt of the employee's first notice of need for leave subsequent to the change.

Additionally, the employer must notify the employee of the amount of leave counted against his or her FMLA entitlement. If known at the time the leave is designated, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee's FMLA entitlement. If it is not possible to provide the hours, days, or weeks that will be counted against the entitlement (such as in the case of unforeseeable, intermittent leave), then the employer must provide notice of the amount of leave counted against the FMLA leave entitlement at the request of the employee, but no more often than once in a 30-day period and only if leave was taken in that period. Notice of the amount of leave taken may be oral, but if oral, must be confirmed in writing, generally by no later than the following payday; such written notice may be in any form, including a pay stub notation.

Recordkeeping

Employers are required to make, keep, and preserve records pertaining to their obligations under FMLA in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA). The FMLA does not require that employers keep their records in any particular order or form, or revise their computerized payroll or personnel records systems to comply.

Employers must keep the records for no less than three years and make them available for inspection, copying, and transcription by Department of Labor representatives upon request. Records kept in computer form must be made available for transcription and copying.

Covered employers who have eligible employees must maintain records that must disclose the following:

  • Basic payroll and identifying information (including name, address, and occupation)
  • Rate or basis of pay
  • Terms of compensation
  • Daily and weekly hours worked per pay period
  • Additions to or deductions from wages
  • Total compensation paid

In addition, covered employers who have eligible employees must also maintain records detailing:

  • Dates of FMLA leave taken by FMLA eligible employees. Leave must be designated in records as FMLA leave, and may not include leave required under state law or an employer plan which is not also covered by FMLA.
  • Hours of FMLA leave taken by FMLA eligible employees, if leave is taken in increments of less than one full day
  • Copies of employee notices of leave furnished to the employer
  • Copies of all written notices given to employees as required under FMLA
  • Documents describing employee benefits or employer paid and unpaid leave policies and practices
  • Premium payments of employee benefits
  • Records of disputes between the employer and the employee regarding FMLA

Records and documents relating to medical certifications, re-certifications or medical histories of employees or employees' family members, created for purposes of FMLA, are required to be maintained as confidential medical records in separate files/records from the usual personnel files. If the Americans with Disabilities Act (ADA) applies, then these records must comply with the ADA confidentiality requirements. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations. First aid and safety personnel may be informed, where appropriate, if the employee's physical or medical condition might require emergency treatment. Government officials investigating compliance must be provided access to relevant information.

Reporting

There are no reporting requirements under FMLA.

Compliance Assistance Available

More detailed information, including copies of explanatory brochures, may be obtained by contacting the local Wage and Hour Division office(https://www.dol.gov/agencies/whd/contact/local-offices). Compliance assistance information is also available from the Wage and Hour Division's Web site(http://www.wagehour.dol.gov). For additional assistance, contact the Wage and Hour Division at 1-866-4-US-WAGE (1-866-487-9243).

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Family and Medical Leave Act. Among the many resources available are:

Relation to State, Local, and Other Federal Laws

A number of states have family leave statutes. Nothing in the FMLA supersedes a provision of state law that is more beneficial to the employee, and employers must comply with the more beneficial provision. Under some circumstances, an employee with a disability may have rights under the Americans with Disabilities Act.

Penalties/Sanctions

Covered employers are required to post a notice for employees outlining the basic provisions of the FMLA and are subject to a civil money penalty if they willfully fail to post such a notice.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

Immigration and Nationality Act

Workers in Professional and Specialty Occupations (H-1B, H-1B1 or E-3)

Sections 101(a)(15)(H)(i)(b) and (b1); 101(a)(15)(E)(iii); 212(n), (p) and (t), and

214(g) of the Immigration and Nationality Act (INA)

(8 USC §1101(a)(15)(H)(i)(b) and (b1), 1182(n) and (t), 1184(g);

20 CFR Part 655 Subparts H and I)

Who is Covered

The INA applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability, using the H-1B nonimmigrant visa classification. The H-1B1 program is for hiring nonimmigrant aliens from Chile and Singapore as workers in specialty occupations and the E-3 is for hiring nonimmigrant aliens from Australia as workers in specialty occupations.

Basic Provisions/Requirements

The INA allows employment of alien workers in certain specialty occupations (generally those requiring at least a bachelor's degree or its equivalent). Foreign workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B, H-1B1, and E-3 visa classification.

The INA sets forth certain prerequisites for employers wishing to employ H-1B, H-1B1, and E-3 nonimmigrant workers. To obtain H-1B or H-1B1 status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must state that it will:

  • Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
  • Provide working conditions for H-1B, H-1B1, or E-3 workers that will not adversely affect the working conditions of workers similarly employed;
  • Not employ an H-1B, H-1B1, or E-3 worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
  • On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B, H-1B1, or E-3 workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B, H-1B1, or E-3 worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

The number of new visas that can be issued each year is subject to a cap. H-1B visas are capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master's degree or higher from a U.S. institution of higher education. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore; E-3 visas are limited to 10,500 nationals of Australia.

Additional rules apply to employers who are dependent upon H-1B workers or are willful violators of the H-1B rules. An H-1B dependent employer is, generally, one whose H-1B workers comprise at least 15 percent of the employer's full-time equivalent employees. Different thresholds apply to smaller employers. H-1B dependent employers that hire H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules.

  • The employer will not displace any similarly employed U.S. worker within 90 days before or after the date of filing of any visa petition supported by an LCA;
  • The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker, and the employer applicant has no contrary knowledge; and
  • The employer, before petitioning for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker" (see Section 203(b) (1) (A), (B), or (C) of the INA).

The American Recovery and Reinvestment Act of 2009 requires all recipients of Federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 that want to hire H-1B workers to make the attestations required of an H-1B dependent employer that are listed above.

After the Department of Labor certifies the LCA, the employer will petition the U.S. Citizenship and Immigration Services (USCIS) for approval to employ a specific alien worker under H-1B status. For H-1B1 and E-3 visas, after the Department of Labor certifies the LCA, the employer must follow the procedures of USCIS and the Department of State, which differ in some respects from procedures for H-1B visas.

The Department of Labor's Wage and Hour Division is responsible for enforcement of this program.

Employee Rights

H-1B, H-1B1, and E-3 workers are granted a number of rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking bona fide "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract

.

U.S. workers and job applicants may also have certain rights under the H-1B programs. U.S. workers employed by an H-1B dependent or willful violator employer may not be laid off within 90 days before or after the employer files a USCIS petition to employ a nonexempt H-1B worker in an essentially equivalent job. In addition, an H-1B dependent employer or willful violator must offer the job to any U.S. worker who applies and is equally or better qualified for the job than the nonexempt H-1B alien worker. The U.S. Department of Justice has the authority to investigate complaints of failure to hire qualified U.S. workers.

No employer of H-1B, H-1B1, or E-3 workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.

U.S. workers and H-1B/H-1B1/E-3 workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements.

Complaints about non-compliance with H-1B/H-1B1/E-3 labor standards may be filed with a local Wage and Hour Division office(https://www.dol.gov/agencies/whd/contact/local-offices).

Notices/Posters

There is no poster requirement.

There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer's establishments, or by providing electronic notice (see below). The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL. The notice must:

  • Indicate that H-1B workers are sought
  • Identify the number of H-1B employees the employer plans to hire
  • State the occupational classification of the H-1B employees
  • State the wages offered
  • State the period of employment
  • State the locations at which the H-1B employees will work, and
  • Where there is no collective bargaining representative, state that the LCAs are available for public inspection at the employer's U.S. principal place of usiness or at the worksite

The notice must include the following statement: "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."

If the employer is an H-1B-dependent employer or a willful violator, and the LCA is not being used only for H-1B exempt nonimmigrants, the notice must contain additional information and must also contain the following statement:

Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer's misrepresentation regarding such offers of employment may be filed with:

The Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices
950 Pennsylvania Avenue NW
Washington, DC 20530

Telephone: 1-800-255-8155 (employers) or1-800-255-7688 (employees)

Web address: https://www.justice.gov/crt/immigrant-and-employee-rights-section

As noted above, notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, remain posted for a total of 10 days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by the electronic means through which the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home webpage).

A copy of the LCA must be provided to each H-1B nonimmigrant no later than the time the H-1B nonimmigrant reports to work at the place of employment.

Recordkeeping

Employers of any H-1B, H-1B1, and E-3 nonimmigrant workers are required to make a filed LCA and its supporting documentation available for public inspection at the employer's principal place of business or at the place of employment of the H-1B/H-1B1/E-3 nonimmigrant workers within one working day after the date of submission of the LCA. This public inspection file must contain the following:

  • A copy of the certified LCA including cover pages
  • Documents providing the wage rate paid to the H-1B nonimmigrant worker
  • Method used to establish the "actual wage," including any periodic increases which the system may provide
  • Prevailing wage rate and a general description of the methodology of the source
  • Documents showing satisfaction of the union/employee notification requirements
  • Summary of benefits offered to U. S. workers and H-1B workers
  • Where the employer utilizes the definition of "single employer" in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status

In the event of corporate change, the public inspection file must also contain:

  • A sworn statement by a successor entity accepting all liabilities of predecessor entity
  • Affected LCA number(s) and effective date(s)
  • Description of successor entity's actual wage system
  • Successor entity's employer identification number

Additional documentation is required for employers who are H-1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients:

  • List of "exempt" H-1B nonimmigrant workers with respect to LCAs that indicate only such exempt workers will be employed
  • Summary of recruitment methods

In addition to the records listed above, every H-1B dependent, willful violator employer, and TARP/Federal Reserve Chapter 13 recipient must keep the required documentation concerning compliance with the non-displacement obligation.

Additionally H-1B, H-1B1, and E-3 employers must maintain complete payroll records and make such available to the Wage and Hour Division upon request. The records must include the following information:

  • Name, address, and occupation, for all H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment
  • Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H-1B, H-1B1, and E-3 worker and any other worker employed by the employer in the same occupation at the place of employment
  • Hours worked each day and each week by the employee if the employee is either paid on other than a salary basis (with respect to H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment), or with respect to only H-1B workers, if the worker is a part-time employee
  • Documentation of the offer of benefits and eligibility for benefits provided as compensation for services

Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer's principal place of business in the U.S. or at the place of employment of workers in the H-1B program.

The other records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer's principal place of business in the U.S. or at the place of employment.

Reporting

After the LCA is certified, if there is a strike or lockout of workers at the place of employment in the same occupational classification as the H-1B nonimmigrants, the employer must notify ETA within three days.

Compliance Assistance Available

Information on filing and processing LCAs may be found on the Employment and Training Administration's (ETA) Foreign Labor Certification website.

More detailed information may also be obtained by contacting the Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor) or the Wage and Hour Division(http://www.wagehour.dol.gov/) (1-866-4-US-WAGE /1-866-487-9243). Information on how to submit a petition requesting an H-1B, H-1B1, or E-3 visa may be obtained from USCIS.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Among the many resources available are:

Relation to State, Local, and Other Federal Laws

Various Federal, state and local labor standards such as the Fair Labor Standards Act, may apply to foreign workers employed in the U.S.

Penalties/Sanctions

Aggrieved parties, and others, may file complaints with the Administrator of the Wage and Hour Division alleging H-1B-related violations. When violations are found, the Administrator may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages.

Within 15 days of the date of the Administrator's determination, any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge (ALJ). Within 30 days of the decision by an ALJ, an interested party may request a review of the ALJ's decision by the Department's Administrative Review Board.

Employers found to have committed certain violations may also be precluded from future access to the H-1B program as well as to other nonimmigrant and immigrant programs for a period of at least one year and as much as three years depending on the nature of the violation.

An H-1B employer will generally be considered in compliance notwithstanding a technical or procedural failure if such employer has made a good faith attempt to comply. However, an employer will not be considered in compliance if DOL or another enforcement agency has explained the basis for the technical or procedural failure and the employer has not corrected the failure voluntarily within 10 business days of receiving the explanation. Furthermore, no fines or penalties shall be assessed for violations of the H-1B prevailing wage requirements if an H-1B employer can establish that the wage was calculated consistent with recognized industry standards and practices. Neither the good faith compliance defense to a technical or procedural failure nor the recognized industry standards and practices defense to a prevailing wage violation is available to an H-1B employer that has engaged in a pattern or practice of willful violations.

DOL Contacts

Employment and Training Administration, Office of Foreign Labor Certification(https://www.dol.gov/agencies/eta/foreign-labor)
Contact the Office of Foreign Labor Certification
Tel: 1-877-US-2JOBS (1-877-872-5627) or 1-202-693-3010; TTY

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

The Labor-Management Reporting and Disclosure Act of 1959, (LMRDA) as amended

(29 USC §401 et seq.; 29 CFR Parts 401 to 453)

Who is Covered

The Labor-Management Reporting and Disclosure Act of 1959, as amended (LMRDA), is administered by the Office of Labor-Management Standards (OLMS). The LMRDA covers unions, officers and employees of unions, union members, employers, labor relations consultants, surety companies, trusts in which a union is interested, and other "persons" as defined in the LMRDA who may be covered by particular provisions of the Act.

The LMRDA also covers unions representing U.S. Postal Service employees by virtue of the Postal Reorganization Act of 1970 and unions representing Federal employees through Section 7120 of the Civil Service Reform Act, and its implementing regulations. The LMRDA does not cover unions composed solely of state and local government employees.

Basic Provisions/Requirements

The LMRDA consists of seven titles

  • Title I, the "Bill of Rights," sets forth certain basic rights that Congress believed Federal law should guarantee to union members. These rights are set forth under the "Employee Rights" section below. Members may enforce these rights through private suit in Federal district court. (Note: Federal-sector union members can bring a complaint to OLMS.) The Secretary of Labor also has enforcement responsibilities with regard to an employee's right to receive and inspect a collective bargaining agreement.
     
  • Title II requires unions to file an information report (Form LM-1), copies of their constitution and bylaws, and annual financial reports (Form LM-2, LM-3, or LM-4) with OLMS. The reports and documents filed with OLMS are public information, and any person may examine them or obtain copies at OLMS offices.

    Officers and employees of unions must file a Form LM-30 with OLMS if they have any loans or benefits from, or certain financial interests in, employers whose employees their union represents and businesses that deal with their union. Employers who enter into such an agreement or engage in certain specified activities or financial dealings with their employees, union, union officers, or labor relations consultants must file a Form LM-10.
    • Labor relations consultants, who enter into an agreement with an employer to persuade employees about their union activities, or to supply certain information to the employer, must file a Form LM-20, Agreement and Activities Report, and a Form LM-21, Receipts and Disbursements Report.

      Finally, surety companies that issue bonds required by the LMRDA or the Employee Retirement Income Security Act of 1974 (ERISA) must file a Form S-1 to report data such as premiums received, total claims paid, and amounts recovered. The Secretary of Labor has authority to enforce the reporting requirements of the Act.
       
  • Title III concerns the imposition of trusteeships over subordinate unions. A parent union may impose a trusteeship only for a purpose specified in the LMRDA, and it must establish and administer the trusteeship in accordance with its own constitution and bylaws. A parent union that places a subordinate union in trusteeship must file initial, semiannual, and terminal trusteeship reports (Forms LM-15, LM-15A, and LM-16).

    Under the LMRDA, the parent union may not engage in certain specified acts involving the funds and delegate votes from a union under trusteeship. The Secretary of Labor has the authority to investigate and enforce alleged violations of Title III, and a union member or subordinate union may also enforce the provisions of this title, except for the reporting requirements, through private suit in Federal district court. Properly imposed trusteeships are presumed to be valid for a period of 18 months and are presumed to be invalid after that period.
     
  • Title IV establishes standards for elections of union officers. Among other things, local unions must elect their officers by secret ballot; national and international unions and intermediate bodies must elect their officers either by secret ballot of the members or by delegates chosen by secret ballot. Title IV requires elections to be held by national and international unions at least every five years; intermediate bodies at least every four years; and local unions at least every three years.

    Unions and employers may not use their funds to promote the candidacy of any candidate, although union funds may be used to conduct an election. A union member in good standing has the right to nominate candidates, be a candidate subject to reasonable qualifications uniformly imposed, hold office, and support and vote for the candidates of the member's choice. Unions must mail a notice of election to every member at the member's last-known home address at least 15 days before the election.

    A union member has the right under Title IV to file a complaint with OLMS regarding the conduct of a union officer election within one calendar month after meeting certain conditions.  Before filing an election complaint with OLMS, a member must have either exhausted internal election remedies within the union, or pursued them for three months without obtaining a final decision from the union.  The Secretary of Labor has authority to file suit in a Federal district court to set aside an invalid union election and to request a new election under the supervision of the Secretary.
     
  • Title V provides a number of safeguards for unions. Union officers have a duty to manage the funds and property of the union solely for the benefit of the union in accordance with its constitution and bylaws. A union may not have outstanding loans to any one officer or employee that exceed $2,000. Union officials who handle union funds or property must be bonded to provide protection against losses.

    A union officer or employee who embezzles or otherwise misappropriates union funds or other assets commits a Federal crime punishable by a fine and/or imprisonment. Persons convicted of certain crimes, including a violation of Title II or III of the LMRDA may not hold union office or employment for up to 13 years after conviction or the end of imprisonment
     
  • Title VI includes the authority to investigate (see "Penalties/Sanctions" below); a prohibition on a union fining, suspending, expelling, or otherwise disciplining members for exercising their rights under the LMRDA; and a prohibition on the use or threat of force or violence to interfere with a union member in the exercise of LMRDA rights.
     
  • Title VII amends the Labor Management Relations Act (LMRA), otherwise known as the Taft-Hartley Act, concerning strikes, boycotts, and picketing. The National Labor Relations Board (NLRB)(http://www.nlrb.gov/), an independent Federal agency, administers the LMRA.
     

Employee Rights

Title I of the LMRDA guarantees certain rights to all union members. These include the right to nominate candidates, to vote in elections or referendums, to attend membership meetings, and to participate in the deliberations and vote upon the business of such meetings, subject to reasonable rules and regulations in the organization's constitution and bylaws.

They also include the right to meet and assemble freely with other members, to express any views, arguments, or opinions, and to express views at meetings about candidates in an election of the labor organization or about any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings. Additional rights outlined in Title I address dues, initiation fees and assessments, protection of the right to sue, and safeguards against improper disciplinary action.

Notices/Posters

There are no posting or notice requirements.

Recordkeeping

Every labor organization subject to the LMRDA, the Civil Service Reform Act (CSRA), or the Foreign Service Act (FSA) must file a financial report (Form LM-2, LM-3, or LM-4) each year with OLMS, and the underlying records must be maintained. The recordkeeping requirements for each financial report, as well as other required reports, are explained below. For each of these reports, the underlying records must be kept for at least five years after the date the report is filed. Any record necessary to verify, explain, or clarify the report must be retained, including, but not limited to, vouchers, worksheets, receipts, and applicable resolutions, and any electronic documents, including recordkeeping software, used to complete, read, and file the report.

Form LM-1, Labor Organization Information Report. The officers required to file Form LM-1 are responsible for maintaining records which must provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report. There are penalties for willfully making any false entry in or concealing, withholding, or destroying any books, records, or statements required to be kept.

Forms LM-2, LM-3, and LM-4, Labor Organization Annual Reports. The officers required to file Form LM-2, LM-3 or LM-4 are responsible for maintaining records which will provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report.

Form LM-30, Labor Organization Officer and Employee Reports. The individual required to file Form LM-30 is responsible for maintaining records which must provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report.

Form LM-10, Employer Report. The individuals required to file Form LM-10 are responsible for maintaining records which will provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report.

Forms LM-20 and 21 (Recordkeeping Requirements for Labor-Relations Consultants). The individual(s) required to file Forms LM-20 and LM-21 are responsible for maintaining records which will provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report.

Form S-1. The individuals required to file Form S-1 are responsible for maintaining records which must provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report. The records must be maintained for at least five years after the date the report is filed. Any record necessary to verify, explain, or clarify the report including, but not limited to, vouchers, worksheets, receipts, and applicable resolutions, must also be maintained.

Reporting

Every labor organization subject to the LMRDA, CSRA, or FSA must file a financial report, Form LM-2, LM-3, or LM-4, each year with OLMS. Other types of reports are required in specific situations; descriptions of these reports are detailed below.

Pursuant to the LMRDA, the U.S. Department of Labor is required to make all submitted reports available for public inspection. These reports are available on the OLMS website.

Form LM-1 (Labor Organization Information Report). The LMRDA and the CSRA regulations require that every covered union adopt a constitution and bylaws and file two copies with OLMS, along with a Labor Organization Information Report, Form LM-1.  The initial Form LM-1 must report certain information concerning the structure, practices, and procedures of the labor organization.  Labor organizations must file the Form LM-1 within 90 days after the date they become subject to the LMRDA, CSRA, or FSA.

Labor organizations are required to file an amended Form LM-1 to update the information on file with OLMS if there are any changes in the practices and procedures listed in Item 18, Column (2) of its most recent Form LM-1. These are changes in practices and procedures which are not contained in the labor organization's constitution and bylaws. The amended Form LM-1 must be filed with the organization's annual financial report for the reporting period in which the change occurred.

Form LM-2 (Financial report). Every labor organization with total annual receipts of $250,000 or more must file the Form LM-2. The form includes the organization's assets, liabilities, receipts, salaries, loans, and other disbursements to officers and employees of more than $10,000. When determining if the $250,000 threshold has been met, include all financial receipts of the labor organization during its fiscal year, including receipts of any special funds, such as "subsidiary organization," defined as an entity that is wholly owned, wholly controlled, and wholly financed by the labor organization. Form LM-2 must be filed electronically.

Certain labor organizations are required to file Form 990(http://www.irs.gov/instructions/i990ez/index.html), Return of Organization Exempt from Income Tax, with the Internal Revenue Service (IRS). The IRS has accepted a copy of the labor organization's Form LM-2 in the past to provide some of the information required by Form 990. Filing the Form LM-2 with the IRS does not satisfy the labor organization's reporting requirement with the U.S. Department of Labor.

The Form LM-2 must be filed within 90 days after the end of the organization's fiscal year (12-month reporting period).

If the organization went out of existence during its fiscal year, a terminal financial report must be filed within 30 days after the date it ceased to exist. A terminal financial report must be filed if the labor organization has gone out of business by disbanding, merging into another organization, or being merged and consolidated with one or more labor organizations to form a new labor organization. The last president and treasurer, or the officials responsible for winding up the affairs of the labor organization, must file a terminal financial report for the period from the beginning of the fiscal year to the date of termination. A terminal financial report is not required if the labor organization changed its affiliation but continues to function as a separate reporting labor organization. In addition to initial and semiannual trusteeship reports, the organization imposing the trusteeship is required to file an annual financial report on Form LM-2 on behalf of the trusteed organization. The Form LM-2 is due within 90 days after the end of the trusteed organization's fiscal year and must report the financial activities of the entire fiscal year. If the trusteeship was imposed during the subordinate labor organization's fiscal year, the first report must cover the period prior to the imposition of the trusteeship as well as the financial transactions occurring during the trusteeship. A terminal trusteeship financial report on Form LM-2 is also required within 90 days after the date that the trusteeship is terminated.

Any Form LM-2 filed on behalf of a trusteed organization must include the signatures of the trustees, in addition to the signatures of the president and treasurer or corresponding principal officers of the organization which established the trusteeship.

Form LM-3 (Financial report). Labor organizations with total annual receipts of less than $250,000 may file the simplified annual report Form LM-3, if not in trusteeship. Labor organizations with greater annual total receipts and those in trusteeship must file the more detailed Form LM-2.

The Form LM-3 must be filed within 90 days after the end of the organization's fiscal year (12-month reporting period).

If the organization goes out of existence during its fiscal year and the organization's total annual receipts were less than $250,000 for the part of the last fiscal year during which the organization existed, a Form LM-3 must be filed within 30 days after the date it ceased to exist. If total annual receipts were more than these limits, the organization must use Form LM-2 to file its terminal financial report. A terminal financial report must be filed if the labor organization has gone out of business by disbanding, merging into another organization, or being merged and consolidated with one or more labor organizations to form a new labor organization. The last president and treasurer, or the officials responsible for winding up the affairs of the labor organization, must file a terminal financial report for the period from the beginning of the fiscal year to the date of termination. A terminal financial report is not required if the labor organization changed its affiliation but continues to function as a separate reporting labor organization.

Form LM-4 (Financial report). If it is not in trusteeship, labor organizations with total annual receipts of less than $10,000 may file the abbreviated 2-page annual report Form LM-4. The term "total annual receipts" means all financial receipts of the labor organization during its fiscal year, regardless of the source, including receipts of any subsidiaries and any special funds.

The Form LM-4 must be filed within 90 days after the end of the labor organization's fiscal year (12-month reporting period).

If the organization goes out of existence during its fiscal year, a terminal financial report must be filed within 30 days after the date it ceased to exist. A terminal financial report must be filed if the labor organization has gone out of business by disbanding, merging into another organization, or being merged and consolidated with one or more labor organizations to form a new labor organization. The last president and treasurer, or the officials responsible for winding up the affairs of the labor organization, must file a terminal financial report for the period from the beginning of the fiscal year to the date of termination. A terminal financial report is not required if the labor organization changed its affiliation but continues to function as a separate reporting labor organization.

A terminal financial report may be filed on Form LM-4 if the labor organization filed its previous annual report on Form LM-4 and the labor organization's total annual receipts were less than $10,000 for the part of the last fiscal year during which the labor organization existed.

Form LM-30 (Union officers and employees). The LMRDA requires public disclosure of certain financial transactions and financial interests of labor organization officers and employees and their spouses and minor children. Every labor organization officer or employee (other than an employee performing clerical or custodial services exclusively) who has engaged in any such transaction or has any such interest during the fiscal year must file a detailed report with the Secretary of Labor.

The reporting requirements only relate to the disclosure of specified financial transactions and interests. The reporting requirements do not address whether such economic interests are lawful or unlawful. The fact that a particular financial transaction or interest is or is not required to be reported is not indicative of whether it is or is not subject to any legal prohibition; this must be tested by provisions of law other than those prescribing the reports.

The types of financial transactions and interests which must be reported can be found in the Form LM-30 and include:

  • Legal and equitable interests in, transactions with, and economic benefits from an employer whose employees his/her union represents or seeks to represent
  • Legal and equitable interests in, transactions with, and economic benefits from certain businesses which deal with the business of the employer whose employees the union represents or seeks to represent, or which deals with the union or a trust in which the labor organization is interested
  • Certain income and other economic benefits received from certain other employers or labor relations consultants

The completed Form LM-30 can be submitted electronically at no cost via the OLMS Electronic Forms System (EFS). Alternatively, the completed, signed form and any additional pages must be mailed to the following address:

U.S. Department of Labor
Office of Labor-Management Standards
200 Constitution Avenue, NW, Room N-1519
Washington, DC 20210

Form LM-10 (Employer). The LMRDA requires public disclosure of specific financial transactions or arrangements made between an employer and one or more of the following: a labor organization, union official, employee, or labor relations consultant. Every employer who has engaged in any such transaction or arrangement during the fiscal year must file a detailed report with the Secretary of Labor within 90 days after the end of the employer's fiscal year. An employer required to file must complete only one Form LM-10 each fiscal year that covers all instances of reportable activity even if activity occurs at multiple locations.

These reporting requirements only relate to the disclosure of specified payments. The reporting requirements do not address whether specific payments, transactions, or arrangements are lawful or unlawful. The fact that a particular payment, transaction, or arrangement is or is not required to be reported does not indicate whether it is or is not subject to any legal prohibition.

The types of financial transactions, arrangements, or expenditures which must be reported are set forth in Form LM-10. The report must include the following: (1) the date of each arrangement and the date and amount of each transaction; (2) the name, address, and position of the person with whom the agreement or transaction was made; and (3) a full explanation of the circumstances of all payments made, including the terms of any agreement or understanding pursuant to which they were made.

The completed Form LM-10 and any additional pages must be mailed to the following address:

U.S. Department of Labor
Office of Labor-Management Standards
200 Constitution Avenue, NW, Room N-1519
Washington, DC 20210

Form LM-20 (Labor Relations Consultant Agreement and Activities Report). Every person, including a labor relations consultant, who enters into an arrangement with an employer under which he or she undertakes activities where an object thereof is, directly or indirectly, to persuade employees about exercising their rights to organize and bargain collectively, or to obtain information about the activities of employees or a union in connection with a labor dispute involving the employer (except information solely for administrative, arbitral, or court proceedings) must file an Agreement and Activities Report, Form LM-20.

These reporting requirements only relate to the disclosure of specific agreements, arrangements, and/or activities. The reporting requirements do not address whether such agreements, arrangements, or activities are lawful or unlawful. The fact that a particular agreement, arrangement or activity is or is not required to be reported does not indicate whether it is or is not subject to any legal prohibition.

Any person who, as a direct or indirect party(/elaws/firststep/glossary.htm?glossary_word=party) to any agreement or arrangement with an employer, undertakes, pursuant to the agreement or arrangement, any activity of this type must file a Form LM-20. A "person" is defined to include, among others, labor relations consultants and other individuals and organizations. A person "undertakes" activities not only when he/she performs the activity but also when he/she agrees to perform the activity or to have them performed.

The information required to be reported on Form LM-20 includes: (1) the party or parties to the agreement or arrangement; (2) the object and terms and conditions of the agreement or arrangement; and (3) the activities performed or to be performed pursuant to the agreement or arrangement.

Each person who has entered into any agreement or arrangement to undertake activities described in the form must file the report within 30 days after entering into such agreement or arrangement. Any changes to the information reported in Form LM-20 (excluding matters related to Item 11.c.) must be filed in a report clearly marked "Amended Report" within 30 days of the change.

The completed Form LM-20 and any required attachments and additional pages must be mailed to the following address:

U.S. Department of Labor
Office of Labor-Management Standards
200 Constitution Avenue, NW, Room N-1519
Washington, DC 20210

Form LM-21 (Labor Relations Consultant - Receipts and Disbursements Report). Any person required to file Form LM-20 must also file Form LM-21, Receipts and Disbursements Report for each fiscal year during which payments were made or received as a result of any agreement or arrangement described in Form LM-20.

Form LM-15 (Trusteeship). The LMRDA, CSRA and FSA require public disclosure of certain matters pertaining to a trusteeship which a labor organization imposes on a subordinate body. Every labor organization which has established a receivership, trusteeship, or other method of supervision or control, suspending the autonomy otherwise available to a subordinate labor organization under its constitution or bylaws, must file trusteeship reports with OLMS.

A Trusteeship Report, Form LM-15, is required whenever supervision or control has been employed which has the effect of suspending any right which a subordinate labor organization otherwise has to carry on its own affairs. Suspension of autonomy will ordinarily include any method of supervision or control which (1) interferes with or restricts the functions of the officers of the subordinate labor organization; (2) prevents the members of the subordinate labor organization or, in the case of an intermediate body, their elected delegates from electing officers; (3) prevents the members or delegates of the subordinate labor organization from participating in the business of the organization which may be transacted at regular or special meetings; or (4) otherwise interferes with the autonomy of the subordinate labor organization; all as provided in the constitution and bylaws or other pertinent documents, and the practices and procedures developed thereunder, of both the organization which has established the trusteeship and the subordinate labor organization.

An initial Form LM-15 must be filed when a parent body imposes a trusteeship on a subordinate body. Form LM‑15 reports must also be filed semiannually for the duration of the trusteeship.

Form LM-15A(https://www.dol.gov/agencies/olms/regs/compliance/GPEA_Forms/blanklmforms#FLM15a) (Report on Selection of Delegates and Officers). Form LM-15A must be filed with the initial or semiannual trusteeship report, Form LM-15, or the terminal trusteeship report, Form LM-16. A Report on Selection of Delegates and Officers, Form LM-15A, must be filed with an initial, semiannual, or terminal trusteeship report if, during the period covered by the report, (1) any convention or other policy-determining body met to which the trusteed labor organization sent delegates or would have sent delegates if not in trusteeship; or (2) the labor organization which imposed the trusteeship over the subordinate organization held an election of officers. Form LM-15A, if required, must be filed with the initial or semiannual trusteeship report, Form LM-15, or the terminal trusteeship report, Form LM-16.

Form LM-16(https://www.dol.gov/agencies/olms/regs/compliance/GPEA_Forms/blanklmforms#FLM16) (Terminal Trusteeship Report). A Terminal Trusteeship Report, Form LM-16, must be filed (along with a Labor Organization Annual Report, Form LM-2) within 90 days after the date that the trusteeship is terminated. The terminal trusteeship report must be filed whether the trusteeship is terminated because the subordinate labor organization is restored to the autonomy otherwise available to it under its constitution and bylaws and the constitution and bylaws of the labor organization which has imposed the trusteeship or because the subordinate labor organization loses its reporting identity through dissolution, merger, consolidation, or otherwise.

Form S-1(https://www.dol.gov/agencies/olms/regs/compliance/GPEA_Forms/blanklmforms#FLMS1) (Surety Company Annual Report). The LMRDA requires public disclosure of financial information from any surety company which issues a bond required by the LMRDA or the Employee Retirement Income Security Act of 1974 (ERISA). Form S-1 must be filed by any surety company having a bond in force which insures the following: 1) a welfare or pension plan covered by ERISA; or 2) any labor organization or trust in which a labor organization is interested. Filers must retain the records necessary to verify the reports for at least five years.

Each surety company is required to file the Form S-1, Surety Company Annual Report(https://www.dol.gov/agencies/olms/regs/compliance/GPEA_Forms/blanklmforms#FLMS1) (and any required attachments and additional pages) within 150 days after the end of its fiscal year, to the national office of OLMS. The LMRDA requires Department of Labor make all submitted forms available for public inspection.

Compliance Assistance Available

Additional compliance assistance materials appear on the OLMS Home Page(https://www.dol.gov/agencies/olms/).  OLMS field office staff members are available to answer questions about the LMRDA and to help individuals and organizations affected by the law.

The OLMS National Office Public Disclosure Room has copies of all reports and documents filed with OLMS. Additional information about the LMRDA, including blank reporting forms and compliance assistance publications, is available through the OLMS Union Reports Web site. Additional information about the LMRDA, including blank reporting forms and compliance assistance publications, is available through the OLMS Web site, as well as the OLMS National and field offices.

The Department of Labor provides labor organizations, employers, union members, and others with clear and easy-to-access information and assistance on how to comply with the Labor-Management Reporting and Disclosure Act. Among the many resources available are:

Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance "By Law" webpage.

Relation to State, Local, and Other Federal Laws

Federal laws related to the LMRDA include the National Labor Relations Act of 1935; the Taft-Hartley Act of 1947; the Racketeer-Influenced and Corrupt Organizations (RICO) Act; the Service Contract Act; and the Civil Service Reform Act of 1978.

Penalties/Sanctions

Section 601(a) of the LMRDA authorizes the Secretary of Labor to investigate "in order to determine whether any person has violated or is about to violate" any provisions of the Act (except the Bill of Rights of Union Members and amendments made by the LMRDA to other laws), and to "enter such places and inspect such records and accounts and question such persons" as may be necessary to determine whether a violation has occurred. The Secretary may issue subpoenas to compel testimony or to obtain records and other materials needed to complete an investigation.

The Secretary may file civil actions in Federal district court to restrain or correct violations and to bring about compliance with the LMRDA. The embezzlement of union funds is subject to a fine of up to $250,000 and/or imprisonment up to five years. Criminal penalties also apply to other Title V provisions as well as to certain reporting violations under Titles II and III.

DOL Contacts

Office of Labor-Management Standards (OLMS)
E-mail: OLMS-Public@dol.gov
Tel: 202-693-0123; TTY: 1-877-889-5627;
OLMS Electronic Forms Software technical support: 1-866-401-1109

The Occupational Safety and Health Act of 1970 (OSH Act)

(29 USC §651 et seq.; 29 CFR Parts 1900 to 2400)

Who is Covered

The Occupational Safety and Health Act of 1970 (OSH Act) is administered by the Occupational Safety and Health Administration (OSHA). The OSH Act covers most private sector employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the Federal OSHA or by an OSHA-approved state job safety and health plan.

Federal OSHA also covers certain workers specifically excluded from a state plan, such as those in some states who work in maritime industries or on military bases.

Workers at state and local government agencies are not covered by federal OSHA but are protected under the OSH Act if they work in states that have OSHA-approved state programs. States and territories may also develop plans that cover only public sector (state and local government) workers.

The OSH Act established a separate program for federal government employees. Section 19 of the OSH Act makes federal agency heads responsible for providing safety and healthful working conditions. Although OSHA does not fine federal agencies, it does monitor them and conducts inspections in response to workers' reports of hazards. Under a 1998 amendment to the OSH Act, the U.S. Postal Service is covered under the OSH Act just like any private sector employer.

The Act does not cover:

  • Self-employed persons;
  • Farms which employ only immediate members of the farmer's family;
  • Working conditions for which other Federal agencies, operating under the authority of other Federal laws, regulate worker safety. This category includes most working conditions in mining, nuclear energy and nuclear weapons manufacture, and many aspects of the transportation industries; and
  • Employees of state and local governments, unless they are in one of the states operating an OSHA-approved state plan.

Basic Provisions/Requirements

The Act assigns OSHA two regulatory functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces. OSHA standards may require that employers adopt certain practices, means, methods, or processes reasonably necessary and appropriate to protect workers on the job. Employers must comply with all applicable OSHA standards and provide workers with a workplace that does not have serious hazards.

Compliance with standards may include implementing engineering controls to limit exposures to physical hazards and toxic substances, implementing administrative controls, as well as ensuring that employees have been provided with, have been effectively trained on, and use personal protective equipment when required for safety and health, where the former controls cannot be feasibly implemented. Employees must comply with all rules and regulations that apply to their own actions and conduct. Even in areas where OSHA has not set forth a standard addressing a specific hazard, employers are responsible for complying with the OSH Act's "general duty" clause. The general duty clause [Section 5(a)(1)] states that each employer "shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

The Act encourages states to develop and operate their own job safety and health programs. OSHA approves and monitors these "state plans," which operate under the authority of state law. There are currently 22 State Plans covering both private sector and state and local government workers, and seven State Plans (Connecticut, Illinois, Maine, Massachusetts, New Jersey, New York, and the Virgin Islands) covering only state and local government workers. States with OSHA-approved job safety and health plans must set standards that are at least as effective as the equivalent Federal standard. Most, but not all of the state plan states, adopt standards identical to the Federal ones.

Federal OSHA Standards.  Standards are grouped into four major categories: general industry (29 CFR 1910); construction (29 CFR 1926); maritime (shipyards, marine terminals, longshoring) (29 CFR 1915-19); and agriculture (29 CFR 1928). While some standards are specific to just one category, others apply across industries. Among the standards with similar requirements for all sectors of industry are those that address access to medical and exposure records, personal protective equipment, and hazard communication.

  • Access to medical and exposure records: This regulation provides a right of access to employees, their designated representatives, and OSHA to relevant medical records, including records related to that employee's exposure to toxic substances.
  • Personal protective equipment: This standard, which is defined separately for each segment of industry except agriculture, requires employers to provide employees with personal equipment designed to protect them against certain hazards and to ensure that employees have been effectively trained on the use of the equipment. This equipment can range from protective helmets to prevent head injuries in construction and cargo handling work, to eye protection, hearing protection, hard-toed shoes, special goggles for welders, and gauntlets for iron workers. Employers must generally provide required personal protective equipment to their employees free of charge.
  • Hazard communication: This standard requires manufacturers and importers of hazardous materials to conduct hazard evaluations of the products they manufacture or import. If a product is found to be hazardous under the terms of the standard, the manufacturer or importer must so indicate on containers of the material, and the first shipment of the material to a new customer must include a safety data sheet (SDS). All employers with hazardous chemicals in their workplace must have labels and SDSs for their exposed workers and train to handle the chemical appropriately. OSHA revised its hazard communication standard in 2012 to be consistent with the Globally Harmonized System of Classification and Labeling of Chemicals.

Employee Rights

The Act grants employees several important rights. Among them are the right to file a complaint with OSHA about safety and health conditions in their workplaces and, to the extent permitted by law, have their identities kept confidential from employers; contest the amount of time OSHA allows for correcting violations of standards; and participate in OSHA workplace inspections.

Private sector employees who exercise their rights under OSHA can be protected against employer reprisal, as described in Section 11(c) of the OSH Act. Employees must notify OSHA within 30 days of the time they learned of the alleged discriminatory action. OSHA will then investigate, and if it agrees that discrimination has occurred, OSHA will ask the employer to restore any lost benefits to the affected employee. If necessary, OSHA can initiate legal action against the employer. In such cases, the worker pays no legal fees. The OSHA-approved state plans have parallel employee rights provisions, including protections against employer reprisal. OSHA's Whistleblower Protection Program enforces the anti-retaliation provisions under the OSH Act and other statutes.

Notices/Posters

Poster. All covered employers are required to display and keep displayed the OSHA Job Safety and Health: It's the Law poster. Employers in states with an OSHA-approved state plan may be required to post a state version of the OSHA poster. There is a separate poster for Federal agencies. The OSHA poster must be displayed in a conspicuous place where employees can see it. Copies of the poster shall be at least 8 1/2 by 14 inches with 10 point type. The poster is available in English, Spanish, and several other languages. Posting of the notice in languages other than English is not required, but OSHA encourages employers with workers that speak other languages to also display the other relevant versions of the poster.

Notices. Employees, former employees and their representatives have the right to review the OSHA Form 300, Log of Work-related Illnesses and Injuries, in its entirety. Employers are required to post the Summary of Work-related Injuries and Illnesses (Form 300A) in a visible location so that employees are aware of the injuries and illnesses that occur in their workplace. Employers are required to post the Summary Form (300A) by February 1 of the year following the year covered by the form and keep it posted until April 30 of that year.

Recordkeeping

OSHA-approved state plan states must adopt occupational injury and illness recording requirements that are substantially identical to the Federal OSHA requirements. Since each state plan's requirements may differ slightly, the Federal OSHA requirements are described below.

Records for employers with 10 or fewer employees. Employers with 10 or fewer employees at all times during the last calendar year do not need to keep OSHA injury and illness records unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that records must be kept. However, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality, an amputation, the loss of an eye, or the in-patient hospitalization of one or more employees.

Records for employers in certain industries. If an employer's business is in an industry that is classified as low hazard, the employer does not need to keep records unless OSHA or the BLS asks them to do so in writing. The partial industry classification exemption applies to individual establishments. If a company has several establishments engaged in different classes of business activities, some of the company's establishments may be required to keep records, while others may be exempt. Industries currently designated as low-hazard include:

  • Certain retail stores
  • Eating and drinking places
  • Most finance, insurance, and real estate industries
  • Certain service industries, such as personal and business services, medical and dental offices, and legal, educational, and membership organizations

Business establishments classified in agriculture, mining, utilities, construction, manufacturing, or wholesale trade are not eligible for the partial industry classification exemption.

All other employers. Employers are required to use the Form 300 Log of Work-Related Injuries and Illnesses to classify work-related injuries and illnesses and to note the extent and severity of each case. When an incident occurs, the Log is used to record specific details about what happened and how it happened.

If the employer has more than one establishment or site, separate records for each physical location that is expected to remain in operation for one year or longer must be kept.

Employers are required to keep a separate Log (Form 300) and Summary of Work-Related Injuries and Illnesses (Form 300A) for each physical location that is expected to be in operation for one year or longer. The Injury and Illness Incident Report (Form 301) is filled out when a recordable work-related injury or illness has occurred. Together with the Form 300 and Form 300A, these forms help the employer and OSHA develop a picture of the extent and severity of work-related incidents.

Employers must record work-related injuries and illnesses that result in:

  • Death
  • Days away from work
  • Restricted work activity or job transfer
  • Medical treatment beyond first aid
  • Loss of consciousness

Employers must record any significant work-related injuries and illnesses that are diagnosed by a physician or other licensed health care professional, such as any work-related case involving cancer, chronic irreversible disease, a fractured or cracked bone or a punctured eardrum.

Employers must record the following conditions when they are work-related:

  • Any needle-stick injury or cut from a sharp object that is contaminated with another person's blood or other potentially infectious material
  • Any case requiring an employee to be medically removed under the requirements of an OSHA health standard
  • Work-related cases involving hearing loss under certain conditions
  • Tuberculosis infection as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional after exposure to a known case of active tuberculosis

Employers do not have to record certain injury and illness incidents such as a visit to a doctor solely for observation and counseling or those requiring first aid treatment only. For more information see the full list of Non-recordable Injury and Illness Incidents.

Electronic Injury Reporting. Certain employers must electronically submit to OSHA information about recordable injuries and illnesses entered on their previous calendar year's OSHA Forms 300A, 300, and 301 using Injury Tracking Application (ITA)'. Establishments covered by Federal OSHA can use the ITA Coverage Application to determine if they are required to electronically submit their injury and illness information to OSHA. Establishments covered by an OSHA-approved State Plan should directly contact their State Plan.

Reporting

OSHA-approved state plan states must adopt occupational injury and illness reporting requirements that are substantially identical to the Federal OSHA requirements. Since each state plan's requirements may differ slightly, the Federal OSHA requirements are described below.

Employers must report to OSHA work-related fatalities within 8 hours of finding out about it.

For any in-patient hospitalization, amputation, or eye loss employers must report the incident to OSHA within 24 hours of learning about it.

Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an inpatient hospitalization, amputation or loss of an eye, the incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.

Employers have three options for reporting the event:

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Occupational Safety and Health Act. Among the many resources available are:

  • OSHA Publications: Provides fact sheets, booklets, and other publications sorted by topic, publication type, and language.
  • Compliance Assistance Quick Start: Provides introductory step-by-step instruction to Occupational Safety and Health Administration (OSHA) compliance assistance resources.
  • OSHA eTools: Provides links to e-tools and Expert Advisors
  • OSHA Safety and Health Topics Pages: Provide information on specific safety and health hazards, and specific hazard information on different industries. These pages provide information on hazard identification and control and applicable OSHA standards.
  • OSHA's Help for Employers Page: Provides a portal to OSHA's compliance assistance resources.
  • OSHA Frequently Asked Questions: Highlights topics and specific questions that are often asked of OSHA.

Because states with OSHA-approved job safety and health programs adopt and enforce their own standards under state law, copies of these standards can be obtained from the individual states. Many are available through state Web sites, which are linked from OSHA's State Occupational Safety and Health Plans webpage.

Cooperative Programs. OSHA offers a number of opportunities for employers, employees, and organizations to work cooperatively with the Agency. OSHA's major cooperative programs are the Voluntary Protections Program (VPP), the Safety and Health Achievement Recognition Program (SHARP), OSHA Challenge, the Alliance Program, and the OSHA Strategic Partnership Program (OSPP).

Voluntary Protection Programs: The Voluntary Protection Programs (VPP) are aimed at extending worker protection beyond the minimum required by OSHA standards. The VPP is designed to:

  • Recognize the outstanding achievements of those who have successfully incorporated comprehensive safety and health programs into their total management systems;
  • Motivate others to achieve excellent safety and health results in the same outstanding way; and
  • Establish a relationship between employers, employees, and OSHA that is based on cooperation rather than coercion.

An employer may apply for VPP at the nearest OSHA regional office. OSHA reviews an employer's VPP application and visits the worksite to verify that the safety and health program described is in effect at the site. All participants must send their injury information annually to their OSHA regional offices. Sites participating in the VPP are not scheduled for programmed inspections. However, OSHA handles any employee complaints, serious accidents/catastrophes, or fatalities according to routine procedures.

The VPP is available in states under federal jurisdiction. Additionally, all OSHA-approved state plans that cover private-sector employees in the state operate similar programs. Interested companies in these states should contact the appropriate state agency for more information.

Safety and Health Achievement Recognition Program (SHARP): This program recognizes small employers who operate an exemplary safety and health management system. Employers who are accepted into SHARP are recognized as models for worksite safety and health. Upon receiving SHARP recognition, the worksite will be exempt from programmed inspections during the period that the SHARP certification is valid. To participate in SHARP, an employer must contact its state's Consultation Program and request a free consultation visit that involves a complete hazard identification survey.

OSHA Challenge: This program provides opportunities for employers to work with OSHA and qualified volunteers (Challenge Administrators) to develop safety and health management systems (SHMS) on par with VPP and SHARP. OSHA Challenge breaks down SHMS implementation in three stages. For each stage, the participants identify actions, documentation, and outcomes. Unique aspects of OSHA Challenge include: no application prerequisites for participants except for a letter of commitment stating that they will follow the program and strive for safety and health excellence; no time constraints to complete the stages, which allows participants to work at their own level and pace; and the use of Challenge Administrators experienced in SHMS to assist participants, which limits the OSHA resources needed to manage the program.

Alliance Program: Through the Alliance Program, OSHA works with businesses, trade and professional organizations, unions, educational institutions, and other government agencies. Alliance Program participants work with OSHA to leverage resources and expertise to help develop compliance assistance tools, training opportunities, and other information to help employers and employees prevent on-the-job injuries, illnesses, and fatalities. OSHA's Alliances with organizations in industries such as plastics, healthcare, maritime, chemical, construction, paper and telecommunications, among others, are working to address safety and health hazards with at-risk audiences, such as youth, immigrant workers, and small business.

Strategic Partnership Program: In this program, OSHA enters into an extended, voluntary, cooperative relationship with employers, associations, unions, and/or councils. Partnerships often cover multiple worksites, and in some instances, affect entire industries. Partner worksites may be very large, but most often they are small businesses averaging 50 or fewer employees. Strategic Partnerships are designed to encourage, assist, and recognize efforts to eliminate serious hazards and achieve a high level of worker safety and health. All Partnerships emphasize sustained efforts and continuing results beyond the typical three-year duration of the agreement.

Training and education: OSHA has 85 full-service field offices (called Area Offices) that offer a variety of informational services, such as publications, technical advice, audio-visual aids on workplace hazards, and lecturers for speaking engagements. Most of these field offices have an OSHA Compliance Assistance Specialist (CAS). CASs provide general information about OSHA standards and compliance assistance resources, and are available for seminars, workshops, and speaking events. CASs promote OSHA's cooperative programs and also encourage employers to take advantage of OSHA's training resources and the tools available on the OSHA website.

The OSHA Training Institute in Arlington Heights, Illinois, provides basic and advanced training and education in safety and health for federal and state compliance safety and health officers; state consultants; other federal agency personnel; and private sector employers, employees, and their representatives. Course topics include electrical hazards, machine guarding, ventilation, and ergonomics, among others. The OSHA Training Institute has partnered with other training and education institutes to conduct Training Institute courses. These Education Centers, which are located throughout the country, provide additional opportunities for the public to receive training on safety and health topics.

The OSHA Outreach Training Program provides training for workers and employers on the recognition, avoidance, abatement, and prevention of safety and health hazards in workplaces. The program also provides information regarding workers' rights, employer responsibilities, and how to file a complaint. This is a voluntary program and does not meet training requirements for any OSHA standards. Through this program, workers can attend 10-hour or 30-hour classes delivered by OSHA-authorized trainers. The 10-hour class is intended for entry level workers, while the 30-hour class is more appropriate for workers with some safety responsibility.

Consultation services: OSHA's On-Site Consultation Program offers free and confidential safety and occupational health advice to small and medium-sized businesses in all states across the country, with priority given to high-hazard worksites. On-Site Consultation services are separate from enforcement and do not result in penalties or citations. Consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing injury and illness prevention programs.

On-site OSHA consultation assistance includes an opening conference with the employer to explain the ground rules for consultation, a walk through the workplace to identify specific hazards and to examine those aspects of the employer's safety and health program that relate to the scope of the visit, and a closing conference. Later, the consultant sends a report of findings and recommendations to the employer. This process begins with the employer's request for consultation, which must include a commitment to correct any serious safety and health hazards identified. The consultant will not report possible violations of OSHA standards to OSHA enforcement staff unless the employer fails or refuses to eliminate or control worker exposure to any identified serious hazard or imminent danger. Should this occur, OSHA may investigate and begin enforcement action. The employer must also agree to allow the consultant to confer freely with employees during the on-site visit.

Additional information about consultation assistance, including a directory of OSHA funded consultation projects, can be found on OSHA's Consultation Program webpage.

Information sources: Information about state plans, VPPs, consultation programs, and inspections can be obtained from the nearest OSHA regional or area office. Area offices are listed in local telephone directories under the U.S. Department of Labor. Contact information for regional and area offices, as well as state plans and consultation programs can also be found on the OSHA website.

OSHA's Office of Small Business Assistance administers OSHA's On-Site Consultation Program and serves as liaison and point of contact with the Agency for small businesses. OSHA offers many services designed to help small businesses and welcomes comments and suggestions from small business owners and their employees.

Relation to State, Local, and Other Federal Laws

The OSH Act covers all private sector working conditions that are not addressed by safety and health regulations of another Federal agency under other legislation. OSHA also has the authority to monitor the safety and health of Federal employees. Federal agency heads are responsible for the safety and health of Federal employees. The OSHA-approved state plan states extend their coverage to state and local government employees.

Finally, OSHA is also responsible for administering a number of whistleblower laws relating to safety and health as described in the Whistleblower Protection section of this Guide and OSHA's Whistleblower Protection webpage.

Penalties/Sanctions

Every establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers (CSHOs). These occupational safety and health professionals possess the knowledge and experience required to conduct workplace inspections; they have been thoroughly trained in recognizing safety and health hazards and in enforcing OSHA's Standards. In states with their own OSHA-approved state plan, pursuant to state law, state officials conduct inspections, issue citations for violations, and propose penalties in a manner that is at least as effective as the Federal program.

OSHA initiates inspections without advance notice based on the following priorities: imminent danger, catastrophes (fatalities or hospitalizations), worker complaints and referrals, targeted inspections (particular hazards, high injury rates), and follow-up inspections. Various OSHA publications and documents detail OSHA's policies and procedures for inspections, including OSHA's Field Operations Manual.

Types of violations that may be cited and the penalties that may be proposed:

No later than January 15 of each year, OSHA adjusts its civil monetary penalties to account for inflation. Current maximum penalty amounts for each violation type listed below are available at osha.gov/penalties. Citation and penalty procedures may differ somewhat in OSHA-approved state plans.

De Minimis violations: The OSH Act authorizes OSHA to treat certain violations, which have no direct or immediate relationship to safety and health, as de minimis, requiring no penalty or abatement. OSHA does not issue citations for de minimis violations.

Other than serious violation: A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

Serious violation: A violation where a substantial probability that death or serious physical harm could result and where the employer knew, or should have known, of the hazard.

Willful violation: A violation that the employer intentionally and knowingly commits. The employer either knows that what he or she is doing constitutes a violation, or is aware that a condition creates a hazard and has made no reasonable effort to eliminate it. Proposed penalties for other-than-serious and serious violations may be adjusted downward depending on the employer's good faith (demonstrated efforts to comply with the Act through the implementation of an effective health and safety program), history of violations, and size of business. Proposed penalties for willful violations may be adjusted downward depending on the size of the business. Usually no credit is given for good faith.

If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for an organization [authorized under the Omnibus Crime Control Act of 1984 (1984 OCCA), not the OSH Act], may be imposed for a criminal conviction.

Repeat violation: A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation is found. To serve as the basis for a repeat citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeat citation.

Failure to abate violation: Failure to correct a prior violation may bring a civil penalty for each day the violation continues beyond the prescribed abatement date.

Appeals process

The following outlines procedures for appealing OSHA citations and penalties.

Appeals by employees and employers: If a complaint from an employee prompted the inspection, the employee or authorized employee representative may request an informal review of any decision not to issue a citation.

Employees may not contest citations, amendments to citations, penalties, or lack of penalties. They may contest the time allowed in the citation for abatement of a hazardous condition. They also may contest an employer's Petition for Modification of Abatement (PMA), which requests an extension of the abatement period. Employees who wish to contest the PMA must do so within 10 working days of its posting or within 10 working days after an authorized employee representative has received a copy.

Within 15 working days of the employer's receipt of the citation, the employer may submit a written objection to OSHA. If the PMA requests an abatement date that is two years or less from the issuance date of the citation, the Area Director has the authority to approve or object to the petition.

Any PMA requesting an abatement date that is more than two years from the issuance date of the citation requires the approval of the Regional Administrator as well as the Area Director. If the PMA is approved, the Area Director shall notify the employer and the employee representatives by letter.

The Area Director or Regional Administrator (as appropriate), after consultation with the Regional Solicitor's Office, shall object to a PMA where the evidence supports non-approval (e.g., employer has taken no meaningful abatement action at all or has otherwise exhibited bad faith). In such cases, all relevant documentation shall be sent to the Review Commission in accordance with §1903.14a(d). Both the employer and the employee representatives shall be notified of this action by letter, with return receipt requested. Letters notifying the employer or employee representative of the objection shall be mailed on the same date that the agency objection to the PMA is sent to the Review Commission.

Employees may request an informal conference with OSHA to discuss any issues raised by an inspection, citation, notice of proposed penalty, or the employer's notice of intention to contest.

Informal conferences: When issued a citation or notice of a proposed penalty, an employer may request an informal conference with OSHA's Area Director to discuss the case. Employee representatives may be invited to attend the meeting. To avoid prolonged legal disputes, the Area Director is authorized to enter into settlement agreements that may revise citations and penalties.

Notice of contest: If the employer decides to contest the citation, the time set for abatement or the proposed penalty, he or she has 15 working days from the time the citation and proposed penalty are received in which to notify the OSHA Area Director in writing. An orally expressed disagreement will not suffice. This written notification is called a "Notice of Contest." There is no specific format for the Notice of Contest. However, it must clearly identify the employer's basis for contesting the citation, notice of proposed penalty, abatement period, or notification of failure to correct violations. To better identify the scope of the contest, it also should identify the inspection number and citation number(s) being contested.

A copy of the Notice of Contest must be given to the employees' authorized representative. If any affected employees are unrepresented by a recognized bargaining agent, a copy of the notice must be posted in a prominent location in the workplace, or else served personally upon each unrepresented employee.

Appeal review procedure: If the written Notice of Contest has been filed within 15 working days, the OSHA Area Director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The Commission is an independent agency not associated with OSHA or the Department of Labor. The Commission assigns the case to an Administrative Law Judge (ALJ). The ALJ may disallow the contest if it is found to be legally invalid, or a hearing may be scheduled for a public place near the employer's workplace. The employer and the employees have the right to participate in the hearing; the OSHRC does not require that they be represented by attorneys.

Once the ALJ has ruled, any party to the case may request a further review by OSHRC. Also, any of the three OSHRC commissioners may individually move to bring a case before the Commission for review. Commission rulings may be appealed to the U.S. Courts of Appeals.

Appeals in state plan states: States with their own occupational safety and health programs have their own systems for review and appeal of citations, penalties, and abatement periods. The procedures are generally similar to Federal OSHA's, but a state review board or equivalent authority hears cases.

DOL Contacts

Occupational Safety and Health Administration (OSHA)
Contact OSHA
Tel.: 1-800-321-OSHA (1-800-321-6742); TTY: 1-877-889-5627

Rehabilitation Act of 1973, as amended

(29 USC §793; Section 503; 41 CFR Parts 60-741 to 60-742)

Who is Covered

Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793(http://www4.law.cornell.edu/uscode/29/793.html), is administered by the Office of Federal Contract Compliance Programs (OFCCP). Section 503 requires employers with Federal contracts or subcontracts that exceed $15,000, and contracts or subcontracts for indefinite quantities (unless the purchaser has reason to believe that the cost in any one year will not exceed $15,000), to treat applicants and employees without discrimination on the basis of disability and to take affirmative steps to hire, retain, and promote qualified individuals with disabilities.

The following types of contracts and subcontracts are exempt from Section 503:

  • Those not exceeding $15,000
  • Those for indefinite quantities where the agency determines that the cost in any one year will not exceed $15,000;
  • Those for work that is performed outside the U.S.
  • Those with state or local governments, except for the specific government entity that participates in work on or under the contract

The Director of the Office of Federal Contract Compliance Programs may grant a waiver from the requirements of Section 503 in the following circumstances:

  • For specific contracts, subcontracts, or purchase orders, if special circumstances in the national interest require such an exemption
  • For facilities not connected to performance of the Federal contract, upon the written request of the contractor, if certain conditions listed in the regulations are met. This type of waiver will terminate, at the very latest, two years after the date on which the waiver is granted, and earlier under certain specific circumstances
  • Contracts and subcontracts involving national security, if the head of the contracting agency determines both that (1) the contract is essential to national security, and (2) noncompliance with a particular requirement of the regulations with respect to the process of awarding the contract is essential to national security

Section 503 and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a Federal contract or subcontract. This coverage is narrower than that which applies to employers in the private sector.

Under Section 503 and its implementing regulations, an "individual with a disability" means a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.

A "qualified individual" means a person who satisfies the job-related requirements of the employment position he or she holds or is applying for, and who, with or without reasonable accommodation, can perform the essential job functions of that position.

Additional information on the definitions of "individual with a disability" and "qualified individual with a disability" can be found in the regulations and in several of the Enforcement Guidance documents published by the Equal Employment Opportunity Commission (EEOC).

Basic Provisions/Requirements

Under Section 503 and its implementing regulations, covered employers with Federal contracts or subcontracts must not discriminate against applicants or employees on the basis of disability. This obligation covers the full range of employment and personnel practices, such as recruitment, hiring, rates of pay, upgrading, and selection for training. Covered employers with Federal contracts or subcontracts must also take affirmative steps to employ and advance in employment qualified individuals with disabilities. All covered contractors must also include a specific equal opportunity clause in each of their nonexempt subcontracts. The regulations provide the required language for this clause.

Under Section 503, each employer that has both a Federal contract or subcontract of $50,000 or more, and 50 or more employees, must prepare, implement, and maintain a written affirmative action program (AAP) covering each of its establishments. The contractor must review and update the program annually and must make it available for inspection by any employee or applicant for employment, as well as by the OFCCP. The program may be integrated with, or kept separate from, any other affirmative action program the employer is required to prepare. OFCCP has provided a Sample Affirmative Action Program (PDF). (https://www.dol.gov/ofccp/regs/compliance/AAPs/AAPs.htm)

Employee Rights

Employees of and applicants for employment with a covered Federal contractor or subcontractor have the right to file a complaint with OFCCP if they believe that a Federal contractor or subcontractor has discriminated against them on the basis of a disability. Anyone may call OFCCP with a question about interpreting the regulations, filing a complaint, or any other related matter. Additional telephone numbers are located on OFCCP's Office Contact webpage.

Notices/Posters

Contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 are required to display the "Know Your Rights" poster. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also display the "Know Your Rights" poster.

The poster must be displayed in conspicuous places available to employees and applicants for employment and representatives of each labor union with which the covered contractor or subcontractor has a collective bargaining agreement, such as, the personnel office, work-out facility, lunchroom, or company bulletin board. There is no particular size requirement.

The "Know Your Rights" poster is available in Spanish. There is no requirement to display the poster in languages other than English.

Contractors that have the obligation to develop a written Section 503 AAP must post a notice at each establishment providing the location and hours the AAP may be viewed. Additionally, the policy statement required by the Section 503 AAP regulations must be displayed on company bulletin boards, and made available in accessible format, if necessary, (e.g., large print, or audio file) so that applicants and employees with disabilities are informed of the contents of the policy statement.

Recordkeeping

Personnel records. Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:

  • Job descriptions
  • Job postings and advertisements
  • Records of job offers
  • Applications and resumes
  • Interview notes
  • Tests and test results
  • Written employment policies and procedures
  • Personnel files

Federal contractors and subcontractors with fewer than 150 employees or a contract of less than $150,000 must keep records for one year from the date of the making of the personnel record or personnel action, whichever occurs later.

Federal contractors and subcontractors with 150 or more employees or who have a government contract of $150,000 or more must keep employment records for two years from the date of the making of the personnel record or personnel action, whichever occurs later.

In addition, all contractors with a Federal contract or subcontract of $50,000 or more, and 50 or more employees, must retain certain records related to outreach and recruitment, the utilization goals, and data analysis, for a period of three years from the date of the making of the record.

Affirmative Action Program. Under Section 503, each employer that has both a Federal contract or subcontract of $50,000 or more, and 50 or more employees, must prepare, implement, and annually update a written affirmative action program (AAP) covering each of its establishments. The employer must make it available for inspection by any employee or applicant for employment, as well as by OFCCP. The program may be integrated with, or kept separate from, any other AAP the employer is required to prepare. Additional information on AAPs may be found on the OFCCP website.

A contractor establishment required under Section 503 to develop and maintain a written AAP must preserve its AAP supporting documentation for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.

Reporting

There are no reporting requirements under Section 503.

Note that contractors may be asked to submit AAPs and other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with Section 503 of the Rehabilitation Act of 1973. Among the many resources available are:

  • elaws Federal Contractor Compliance Advisor - Helps Federal contractors and subcontractors answer basic questions about coverage and compliance issues related to the equal employment opportunity laws administered by OFCCP.
  • OFCCP webpage on Section 503 - Includes frequently asked questions, recruitment resources and other materials to assist Federal contractors in complying with Section 503.

Relation to State, Local, and Other Federal Laws

Section 107(b) of the Americans with Disabilities Act of 1990 (ADA) required agencies with enforcement responsibilities under the Rehabilitation Act of 1973 (e.g., OFCCP) and under Title I of the ADA (i.e., the Equal Employment Opportunity Commission(http://www.eeoc.gov/)) to develop procedural regulations to ensure that complaints filed under these laws are addressed in a manner that avoids duplication of effort and prevents application of inconsistent or conflicting standards for the same requirements under the two laws. These regulations are found at 41 CFR Part 60-742(/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/text-idx^Q^tpl=/ecfrbrowse/Title41/41cfr60-742_main_02.tpl&exitTitle=www.ecfr.gov&fedpage=yes).

Penalties/Sanctions

OFCCP conducts compliance evaluations and complaint investigations assessing whether Federal contractors and subcontractors are in compliance with Section 503. If a violation is found, OFCCP may ask the Federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts succeed, the contractor will enter into a binding conciliation agreement with OFCCP that includes corrective action the contractor will take, and may also include the submission of follow-up reports from the contractor, for a fixed period of time, to assure compliance. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by issuing an administrative complaint against the contractor or subcontractor.

If OFCCP files an administrative complaint, the matter will be referred to an Administrative Law Judge, who hears the case and recommends a decision. If the contractor or subcontractor is dissatisfied with the Administrative Law Judge's decision, it may appeal the decision to the Department of Labor's Administrative Review Board. The Board issues the final decision, whether or not there is an appeal.

If the Board finds that a violation of Section 503 has occurred, it may order the contractor or subcontractor to provide appropriate relief, which may include back pay and benefits, and restoration of employment status, for the victim(s) of discrimination. Depending on the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, or debarment.

If the contractor or subcontractor is dissatisfied with the Board's decision, it may appeal that decision to the Federal courts.

DOL Contacts

Office of Federal Contract Compliance Programs (OFCCP)(https://www.dol.gov/ofccp/)
E-mail: OFCCP-Public@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-800-397-6251; TTY: 1-877-889-5627

Uniformed Services Employment and Reemployment Rights Act (USERRA)

(38 USC §§4301 through 4334)

Who is Covered

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is administered by the Veterans' Employment and Training Service (VETS). USERRA applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services."

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.

Basic Provisions/Requirements

USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

The pre-service employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria:

  • The person must have been absent from a civilian job on account of service in the uniformed services;
  • The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
  • The cumulative period of military service with that employer must not have exceeded five years;
  • The person must not have been released from service under dishonorable or other punitive conditions; and
  • The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

USERRA establishes a five-year cumulative total of military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training. USERRA also allows an employee to complete an initial period of active duty that exceeds five years.

Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

Employee Rights

USERRA provides that returning servicemembers are to be reemployed in the job that they would have attained had they not been absent for military service, (the "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the "escalator" position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights and benefits accorded other similarly-situated individuals on non-military leaves of absence. The time limits for returning to work are as follows:

  • Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
  • 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.
  • 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
  • Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

Health and pension plan coverage for servicemembers is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed. USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under Federal or state laws governing pension benefits for government employees. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.

Notices/Posters

Employers are required to provide to persons covered by USERRA a notice of the rights, benefits, and obligations of the employees and employers under USERRA.  To do this, employers may post the notice entitled "Your Rights Under USERRA" where employer notices are customarily placed, mail it, or by distributing it via electronic mail. There is no size requirement for the poster version of the notice.

Recordkeeping

There are no required records under USERRA.

Reporting

There are no required reports under USERRA.

Compliance Assistance Available

Compliance assistance information is available on the VETS Web site(https://www.dol.gov/agencies/vets). Specific compliance assistance materials available include: the Department of Labor USERRA regulations (20 CFR Part 1002)(https://www.ecfr.gov/cgi-bin/text-idx?SID=2cd11f170ae3875e6bd2fa46cec6402e&mc=true&node=pt20.4.1002&rgn=div5), which implement the law for non-Federal employers; a fact sheet (https://www.dol.gov/agencies/vets/programs/userra/userra_fs) about USERRA; and the notice/poster(https://www.dol.gov/agencies/vets/programs/userra/resources) to employees of their rights, benefits, and obligations under USERRA. Copies of VETS publications, or answers to questions about USERRA, may also be obtained from a local VETS office(https://www.dol.gov/agencies/vets/about/regionaloffices).

Another compliance assistance resource, the elaws Uniformed Services Employment and Reemployment Rights Act (USERRA) Advisor(/elaws/userra.htm), helps veterans understand employee eligibility and job entitlements, employer obligations, benefits, and remedies under the Act.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Uniformed Services Employment and Reemployment Rights Act. Among the many resources are Frequently Asked Questions for Reservists being Called to Active Duty(https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/reservists-being-called-to-active-duty.pdf), explanatory brochures, fact sheets, and regulatory and interpretive materials are available.

Relation to State, Local, and Other Federal Laws

USERRA does not preempt state laws providing greater or additional rights or benefits, but it does preempt state laws providing lesser rights or benefits or imposing additional eligibility criteria.

Penalties/Sanctions

A court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for "willful" violations.

DOL Contacts

Veterans' Employment and Training Service (VETS)
Contact VETS
Tel: 1-866-237-0275; TTY: 1-877-889-5627

Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended;

(38 USC §4212, as amended; 41 CFR Part 60-300

Who is Covered

The nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, ("VEVRAA") are administered by the Office of Federal Contract Compliance Programs (OFCCP) and the Veterans' Employment and Training Service (VETS). VEVRAA generally covers employers with federal contracts or subcontracts that meet the threshold amount specified in the statute. The employer is covered under VEVRAA if the federal contract or subcontract is in the amount of $150,000 or more. Contracts covered by VEVRAA are subject to the implementing regulations found at 41 CFR Part 60-300.

The following types of contracts and subcontracts are not covered under VEVRAA:

  • Those for less than $150,000;
  • Those for indefinite quantities where the agency determines that the cost in any one year will not exceed $150,000;
  • Those for work that is performed outside the U.S.; and
  • Those with state or local governments, except for the specific government entity that participates in work on or under the contract.

The Director of the Office of Federal Contract Compliance Programs may grant a waiver from the requirements of VEVRAA in the following circumstances:

  • For specific contracts, subcontracts, or purchase orders, if special circumstances in the national interest require such an exemption;
  • For facilities not related to performance of the contract, as determined by the Deputy Assistant Secretary upon written request by the contractor; and
  • Contracts and subcontracts involving national security, if the head of the contracting agency determines both that the contract is essential to national security, and noncompliance with a particular requirement of VEVRAA or the regulations with respect to the process of awarding the contract is essential to national security
    • .

The categories of veterans covered under VEVRAA are disabled veterans, recently separated veterans (within three years of discharge or release from active duty), active duty wartime or campaign badge veteran, and veterans who, while serving on active duty in the Armed Forces, participated in a U.S. military operation for which an Armed Forces Service Medal was awarded pursuant to Executive Order 12985 (61 FR 1209).

VEVRAA and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a Federal contract or subcontract. The coverage is narrower than that which applies to employers in the private sector.

Definitions

"Disabled veteran" means a veteran who served on active duty in the U.S. military ground, naval, or air service and is entitled to disability compensation (or who but for the receipt of military retired pay would be entitled to disability compensation) under laws administered by the Secretary of Veterans Affairs, or was discharged or released from active duty because of a service-connected disability.

"Recently separated veterans" means any veteran who served on active duty during the three-year period beginning on the date of such veteran's discharge or release from active duty.

"Armed forces service medal veteran" means any veteran who, while serving on active duty in the U.S. military ground, naval, or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 Fed. Reg. 1209).

"Active duty wartime or campaign badge veteran" means a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense

.

Basic Provisions/Requirements

The regulations implementing VEVRAA include the obligation to refrain from discrimination in employment against protected veterans. The regulations also require all covered contracts and subcontracts to include a specific equal opportunity clause. The regulations provide the required language for this clause at 41 CFR 60-300.5.

In addition, VEVRAA requires contractors and subcontractors to list most employment openings with an appropriate employment service delivery system. Exempted from this mandatory job listing requirement are executive and top management positions, positions that will be filled from within the contractor's organization, and positions lasting three days or less. Listing employment openings with the State workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the requirement to list jobs with the local employment service delivery system

.

Covered contractors and subcontractors are also required to make reasonable accommodations for the known physical or mental limitations of qualified disabled veterans, unless providing an accommodation would create an undue hardship. In addition, covered contractors and subcontractors are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against any individual for filing a complaint or participating in a proceeding under VEVRAA.

Affirmative Action Program. Under the regulations implementing VEVRAA, certain contractors and subcontractors are required to have a written affirmative action program (AAP). Each contractor or subcontractor that has (1) 50 or more employees, and (2) a federal contract or subcontract of $150,000 or more, must prepare, implement, and maintain a written AAP for each of its establishments.

Additional information on AAPs may be found on the OFCCP website.

A contractor establishment required under VEVRAA to develop and maintain a written AAP must preserve its AAP supporting documentation for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.

Employee Rights

Employees and applicants for employment with a covered Federal contractor or subcontractor have the right to file a complaint with OFCCP if they believe that the contractor or subcontractor has discriminated against them on the basis of their status as a protected veteran or otherwise violated VEVRAA and its implementing regulations. Such complaints may be filed online at OFCCP's How to File a Complaint webpage.

Notices/Posters

Contractors and subcontractors who hold a single federal contract or subcontract in excess of $10,000 are required to display the "Know Your Rights" poster. Federal contractors and subcontractors who (1) hold government bills of lading; (2) serve as a depository of federal funds in any amount; or (3) act as issuing and paying agents for U.S. savings bonds and notes must also display the "Know Your Rights" poster.

The poster must be displayed in conspicuous places available to employees and applicants for employment and representatives of each labor union with which the covered contractor or subcontractor has a collective bargaining agreement, such as, the personnel office, work-out facility, lunchroom, or company bulletin board. There is no particular size requirement.

The "Know Your Rights" poster is available in Spanish. There is no requirement to display the poster in languages other than English.

Contractors that have the obligation to develop a written VEVRAA AAP must post a notice at each establishment providing the location and hours the AAP may be viewed. Additionally, the policy statement required by the VEVRAA AAP regulations must be posted on company bulletin boards, and made available in accessible format, if necessary, (e.g., large print, or audio file) so that applicants and employees with disabilities are informed of the contents of the policy statement.

Recordkeeping

Personnel records. Federal contractors are required to maintain any personnel or employment records made or kept by the contractor. Examples of records that must be maintained include:

  • Job descriptions
  • Job postings and advertisements
  • Records of job offers
  • Applications and resumes
  • Interview notes
  • Tests and test results
  • Written employment policies and procedures
  • Personnel files

Federal contractors and subcontractors with fewer than 150 employees or a contract of less than $150,000 must keep records for one year from the date of the making of the personnel record or personnel action, whichever occurs later.

Federal contractors and subcontractors with 150 or more employees or who have a government contract of $150,000 or more must keep employment records for two years from the date of the making of the personnel record or personnel action, whichever occurs later.

In addition, all contractors with a Federal contract or subcontract of $150,000 or more, and 50 or more employees, must retain certain records related to outreach and recruitment, the hiring benchmark and data analysis, for a period of three years from the date of the making of the record.

Affirmative Action Program. Under VEVRAA, each employer that has both a Federal contract or subcontract of $150,000 or more, and 50 or more employees, must prepare, implement, and annually update a written affirmative action program (AAP) covering each of its establishments. The employer must make it available for inspection by any employee or applicant for employment, as well as by OFCCP. The program may be integrated with, or kept separate from, any other AAPs the employer is required to prepare. Additional information on AAPs may be found on the OFCCP website.

A contractor establishment required under VEVRAA to develop and maintain a written AAP must preserve its AAP supporting documentation for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.

Reporting

Federal contractors or subcontractors with a federal contract or subcontract of $150,000 or more, are required to complete and submit the VETS-4212 Report showing the numbers of protected veterans hired or employed during the reporting period. The VETS-4212 Report may be completed online.

Note that contractors may be asked to submit AAPs or other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Vietnam Era Veterans' Readjustment Assistance Act. Among the many resources available are:

  • elaws Federal Contractor Compliance Advisor: Helps Federal contractors and subcontractors answer basic questions about coverage and compliance issues related to the equal employment opportunity laws administered by OFCCP.
  • OFCCP's webpage on VEVRAA - Includes frequently asked questions, recruitment resources and other materials to assist federal contractors in complying with VEVRAA.

Relation to State, Local, and Other Federal Laws

There are no related state or local laws.

Penalties/Sanctions

OFCCP conducts compliance evaluations and complaint investigations assessing whether Federal contractors and subcontractors are in compliance with VEVRAA. If a violation is found, OFCCP may ask the Federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts succeed, the contractor will enter into a binding conciliation agreement with OFCCP that includes corrective action the contractor will take, and may also include the submission of follow-up reports from the contractor, for a fixed period of time, to assure compliance. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by filing an administrative complaint against the contractor or subcontractor.

If OFCCP files an administrative complaint, the matter will be referred to an Administrative Law Judge (ALJ), who hears the case and recommends a decision. The Department of Labor's Administrative Review Board issues final decisions. If the contractor or subcontractor is dissatisfied with the ALJ's decision, it may appeal the decision to the Board.

If the Board finds that the contractor or subcontractor has violated VEVRAA, it may order the contractor or subcontractor to provide appropriate relief, which may include restoration of back pay and employment status and benefits for the victim(s) of discrimination. Depending upon the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, or debarment.

DOL Contacts

Office of Federal Contract Compliance Programs (OFCCP)(https://www.dol.gov/ofccp/)
E-mail: OFCCP-Public@dol.gov
Tel: 1-866-4USADOL (1-866-487-2365) or 1-800-397-6251; TTY: 1-877-889-5627

Veterans' Employment and Training Service (VETS)
Contact VETS
Tel: 1-866-237-0275; TTY: 1-877-889-5627

Worker Adjustment and Retraining Notification Act (WARN)

(29 USC §2101 et seq.; 20 CFR Part 639)

Who is Covered

The Worker Adjustment and Retraining Notification (WARN) generally covers employers with 100 or more employees, not counting those who have worked less than six months in the last 12 months and those who work less than 20 hours per week, or those employers with 100 or more employees, including part-time workers, who in the aggregate work at least 4,000 hours per week, exclusive of overtime. Regular Federal, state, and local government entities that provide public services are not covered. Employees entitled to notice under WARN include managers and supervisors as well as hourly and salaried workers.

Basic Provisions/Requirements

WARN protects workers, their families, and communities by requiring employers to provide notification 60 calendar days in advance of plant closings and mass layoffs. Advance notice gives workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain other jobs and, if necessary, to enter skill training or retraining that will allow these workers to compete successfully in the job market. WARN also provides for notice to state dislocated worker units so that they can promptly offer dislocated worker assistance.

A covered plant closing occurs when the permanent or temporary closure of a single site of employment or of one or more facilities or operating units within a single site of employment results in an employment loss as defined by WARN regulations. A covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site (or for certain multiple related layoffs, during a 90-day period), if these employees represent at least 33 percent of the employer's workforce where the layoff will occur, and the layoff results in an employment loss for more than six months. If the layoff affects 500 or more workers, the 33 percent rule does not apply.

WARN does not apply to closure of temporary facilities, or the completion of an activity when the workers were hired only for the duration of that activity. WARN also provides for less than 60 days notice when the layoffs resulted from closure of a faltering company, unforeseeable business circumstances, or natural disaster.

Employee Rights

Workers or their representatives, and units of local government may bring individual or class action suits. U.S. district courts enforce WARN requirements. The court may allow reasonable attorney's fees as part of any final judgment.

Notices/Posters

There are no workplace poster requirements under the WARN Act.

Employers do have notice requirements under the WARN Act. 

If an employer orders a plant closing or mass layoff, it is required to provide notification to the employees or their representatives, the state dislocated worker units, (so that they can promptly offer dislocated worker assistance), and the chief elected officials of local governments.

Notices to employees or their representatives.  WARN requires employers to notify either the individual employees affected by a plant closing or mass layoff or their representatives at least 60 calendar days prior to any planned plant closing or mass layoff.  If employees are terminated on different dates, the date of the first individual termination within the statutory 30-day or 90-day period triggers the 60-day notice requirement.

Notices to representatives.  These notices must contain the following:

  • The name and address of the employment site where the plant closing or mass layoff will occur, and the name and telephone number of a company official to contact for further information
  • A statement about whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  • The expected date of the first separation and the anticipated schedule for making separations
  • The job titles of positions to be affected and the names of the workers currently holding affected jobs

Notices to individual employees.  If the affected employees do not have a representative, the notice is to be written in language understandable to the employees and is to contain:

  • A statement about whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  • The expected date when the plant closing or mass layoff will begin, and the expected date when the individual employee will be separated
  • An indication whether or not bumping rights exist
  • The name and telephone number of a company official to contact for further information

The notice may include additional information useful to the employees such as information on available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration.

Notices to State Dislocated Worker Units and the chief elected officials of local governments.  WARN requires employers to separately provide notices to the state dislocated worker unit and to the chief elected official of the unit of local government in which the affected plant is located.  The notice should contain:

  • The name and address of the employment site where the plant closing or mass layoff will occur, and the name and telephone number of a company official to contact for further information
  • A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  • The expected date of the first separation, and the anticipated schedule for making separations
  • The job titles of positions to be affected, and the number of affected employees in each job classification
  • An indication as to whether or not bumping rights exist
  • The name of each union representing affected employees, and the name and address of the chief elected officer of each union

The notice may include additional information useful to the employees such as a statement of whether the planned action is expected to be temporary and, if so, its expected duration.  As an alternative, an employer may give notice to the state dislocated worker unit and to the unit of local government by providing them with a written notice stating:

  • The name and address of the employment site where the plant closing or mass layoff will occur
  • The name and telephone number of a company official to contact for further information
  • The expected date of the first separation
  • The number of affected employees

If the employer chooses the alternative notice, the information required for the longer form of notice must be maintained on-site where it is readily accessible to the state dislocated worker unit and to the unit of local government.

Recordkeeping

There are no recordkeeping requirements.

Reporting

There are no reporting requirements.

Compliance Assistance Available

General information about WARN, worker's guide (PDF), and employer's guide (PDF) are available from the Employment and Training Administration's website. Specific requirements of WARN may be found in the Act itself and the regulations at 20 CFR Part 639.

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Worker Adjustment and Retraining Notification Act. Compliance assistance related to the Act, including the WARN e-laws Advisor is available on the Worker Adjustment and Retraining Notification (WARN) Act Compliance Assistance Materials webpage.

Relation to State, Local, and Other Federal Laws

WARN does not preempt any other Federal, state, or local law, or any employer/employee agreement that requires other notification or benefit. Rather, the rights provided by WARN supplement those provided by other Federal, state, or local laws.

Penalties/Sanctions

WARN is enforced through the U.S. District Courts. Workers, their representatives, and units of local government may bring individual or class action suits against employers believed to be in violation of the Act. The Department of Labor has no authority or legal standing in any enforcement action and cannot provide specific binding or authoritative opinions or guidance about individual situations. The Department of Labor provides assistance in understanding the law and regulations to individuals, firms, and communities.

An employer who violates the WARN provisions is liable to each employee for an amount equal to back pay and benefits for the period of the violation, up to 60 days. This may be reduced by the period of any notice that was given, and any voluntary payments that the employer made to the employee.

An employer who fails to provide the required notice to the unit of local government is subject to a civil penalty not to exceed $500 for each day of violation. The employer may avoid this penalty by satisfying the liability to each employee within three weeks after the closing or layoff.

DOL Contacts

Employment and Training Administration (ETA)
Office of Policy Development and Research
Tel: 1-877-US-2-JOBS (1-877-872-5627)

Whistleblower Protection Provisions

Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)

Surface Transportation Assistance Act (STAA), 49 USC § 31105

Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651

International Safe Container Act (ISCA), 46 USC § 80507

Energy Reorganization Act of 1974 (ERA), 42 USC § 5851

Clean Air Act (CAA), 42 USC § 7622

Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)

Federal Water Pollution Control Act (FWPCA), 33 USC § 1367

Toxic Substances Control Act (TSCA), 15 USC § 2622

Solid Waste Disposal Act (SWDA), 42 USC § 6971

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 USC § 9610

Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121

Sarbanes-Oxley Act (SOA), 18 USC § 1514A

Pipeline Safety Improvement Act (PSIA), 49 USC § 60129

National Transit Systems Security Act (NTSSA)

Federal Rail Safety Act

The Occupational Safety and Health Administration (OSHA) administers the employee protection (or "whistleblower") provisions of sixteen statutes.

Who is Covered

The Occupational Safety and Health Administration (OSHA) administers the employee "whistleblower" protection provisions of twenty-two statutes.

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for exercising any right afforded by the OSH act, such as complaining to the employer union, OSHA, or any other government agency about workplace safety or health hazards; or for participating in OSHA inspection conferences, hearings, or other OSHA-related activities.

Under the Surface Transportation Assistance Act (STAA), employees and certain independent contractors in the trucking industry may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting certain commercial motor vehicle (CMV) safety, health, or security concerns; for refusing to drive under dangerous circumstances or in violation of CMV safety, health, or security rules; for accurately reporting their hours on duty; for cooperating with safety or security investigations conducted by certain Federal agencies; or for furnishing information to a government agency relating to any accident or incident resulting in injury or death or damage to property in connection with CMV transportation.

Under the Asbestos Hazard Emergency Response Act (AHERA), employees may file complaints with OSHA if they believe they have experienced discrimination or retaliation for reporting alleged violations of environmental laws relating to asbestos in elementary and secondary school systems.

Under the International Safe Container Act (ISCA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting allegations of an unsafe cargo container.

Under the Energy Reorganization Act (ERA), certain employees in the nuclear power and nuclear medicine industries may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of nuclear safety laws or regulations.

Under the Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Federal Water Pollution Control Act (FWPCA), Toxic Substances Control Act (TSCA), Solid Waste Disposal Act (SWDA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of certain environmental laws or regulations.

Under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), employees of air carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of Federal aviation safety laws or regulations.

Under the Sarbanes-Oxley Act (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, employees of certain publicly traded companies, companies with certain reporting requirements with the Securities and Exchange Commission (SEC), and their contractors, subcontractors, and agents may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of the Federal mail, wire, bank, or securities fraud statutes, any rule or regulation of the SEC, or any other provision of Federal law relating to fraud against shareholders.

Under the Pipeline Safety Improvement Act (PSIA), employees of owners or operators of pipeline facilities and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of Federal law regarding pipeline safety or for refusing to violate such provisions.

Under the Federal Rail Safety Act (FRSA), employees of railroad carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security; refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under imminent danger circumstances); or for requesting prompt medical or first aid treatment for employment-related injuries.

Under the National Transit Systems Security Act (NTSSA), employees of public transportation agencies and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any Federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of Federal grants or other public funds intended to be used for public transportation safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any Federal law, rule, or regulation relating to public transportation safety or security; or refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties (under imminent danger circumstances).

Under the Moving Ahead for Progress in the 21st Century Act (MAP-21), employees of motor vehicle manufacturers, part suppliers, and dealerships may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration (NHTSA), or for engaging in related protected activities as set forth in the provision.

Under the Consumer Product Safety Improvement Act (CPSIA), employees of manufacturers, private labelers, distributors, and retailers may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of any law or regulation within the jurisdiction of the Consumer Product Safety Commission (CPSC) to the employer, the Federal government, or a state attorney general; or for refusing to perform assigned tasks that the employee reasonably believes would violate CPSC requirements.

Under the FDA Food Safety Modernization Act (FSMA), employees of food manufacturers, distributors, packers, and transporters may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act. Employees are also protected from retaliation for refusing to participate in a practice that violates the Act.

Under the Consumer Financial Protection Act (CFPA), employees performing tasks related to consumer financial products or services may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting reasonably perceived violations of any provision of title X of the Dodd-Frank Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial Protection, or any rule, order, standard, or prohibition prescribed by the Bureau.

Under the Affordable Care Act (ACA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium.

Under the Seaman's Protection Act (SPA), as amended by the Coast Guard Authorization Act of 2010, seamen may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting to the Coast Guard or another federal agency a violation of a maritime safety law or regulation. Among other things, the Act also protects seamen from retaliation for refusing to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public.

Other Department of Labor agencies, such as the Wage and Hour Division, the Employee Benefits Security Administration, and the Mine Safety and Health Administration, enforce the anti-retaliation provisions of numerous other statutes and Executive Orders. Information concerning many of these additional anti-retaliation protections is available in other sections of the Guide.

Basic Provisions/Requirements

Generally, the employee protection provisions listed above prohibit covered employers from discharging or otherwise discriminating against any employee because the employee engaged in certain activities protected by law.

The protected activities typically include:

  • Initiating a proceeding under, or for the enforcement of, any of these statutes, or causing such a proceeding to be initiated;
  • Testifying in any such proceeding;
  • Assisting or participating in any such proceeding or in any other action to carry out the purposes of these statutes; or
  • Complaining about a violation.

Many of the statutes specifically protect an employee's internal complaints to his or her employer, and it is the Department of Labor's position, as set forth in regulations, that employees who express safety or quality assurance concerns internally to their employers are protected under all of the whistleblower statutes administered by OSHA.

Employee Rights

Any employee who believes that he or she has been discriminated or retaliated against in violation of any of the statutes listed above may file a complaint with OSHA. Complaints must be filed within 30 days after the occurrence of the alleged violation under the OSH Act, CAA, CERCLA, SWDA, FWPCA, SDWA, and TSCA; within 60 days under ISCA; within 90 days under AIR21 and AHERA; and within 180 days under ACA, FSMA, SPA, MAP-21, SOX, STAA, ERA, PSIA, FRSA, NTSSA, CFPA and CPSIA.

If the Secretary of Labor has not issued a final decision within 180 days of the filing of a SOX complaint, one year of the filing of an ERA complaint, or 210 days of a ACA, SPA, FSMA, MAP-21, STAA, FRSA, NTSSA, CFPA or CPSIA complaint, and there is no showing that there has been delay due to the bad faith of the employee, the employee may bring an action at law or equity in district court under those statutes.

Notices/Posters

There are no recordkeeping, reporting, poster, or other notice requirements for employers under the Whistleblower Protection provisions administered and enforced by OSHA.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Whistleblower Protection provisions, at OSHA's Whistleblower Program website.

Relation to State, Local, and Other Federal Laws

The Supreme Court has held that the employee protection provisions of the ERA do not preempt existing state statutes and common law claims. The other statutes listed above should be consulted separately to determine whether or not their employee protection provisions are supplementary to protection provided by state laws.

Penalties/Sanctions

Upon receipt of a timely complaint, OSHA notifies the employer and, if conciliation fails, conducts an investigation. Where OSHA finds that complaints filed under the OSH Act, AHERA, and ISCA have merit, they are referred to the Solicitor's Office for legal action. Complaints under these three statutes found not to have merit will be dismissed. Where OSHA finds a violation after investigating complaints under the other statutes listed above, it will issue a determination letter requiring the employer to pay back wages, reinstate the employee, reimburse the employee for attorney and expert witness fees, and take other steps to provide necessary relief. Complaints found not to have merit will be dismissed.

Parties who object to OSHA's determinations under the other statutes listed above (except for the OSH Act, AHERA, and ISCA) may request a hearing before the Department of Labor's Office of Administrative Law Judges (OALJ)(http://www.oalj.dol.gov). Administrative Law Judges' decisions are reviewed by the Department of Labor's Administrative Review Board(https://www.dol.gov/agencies/arb), which the Secretary of Labor has designated to issue final agency decisions.

Under STAA, if OSHA finds in favor of the employee, litigation ordinarily is conducted by the Solicitor's Office, but sometimes by the private party. Under the other statutes, litigation generally is conducted by the private parties themselves. Employers and employees may seek judicial review of an adverse Administrative Review Board decision.

Under the AIR21, SOX, PSIA, FRSA, NTSSA, CPSIA, ACA, CFPA, FSMA, and MAP-21, employees who file complaints frivolously or in bad faith may be liable for attorney's fees up to $1,000.

DOL Contacts

Occupational Safety and Health Administration (OSHA)
Contact OSHA
Tel.: 1-800-321-OSHA (1-800-321-6742); TTY: 1-877-889-5627

UNITED STATES
DEPARTMENT OF LABOR