elaws - <i>FirstStep</i> Employment Law Advisor

FirstStep Employment Law Advisor

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You have indicated that:

You want a Basic Overview of Laws
The nature of your business or organization is: Mining, including surface mining
The maximum number of employees your business or organization employs or will employ during the calendar year is 11 - 14.
You hire or plan to hire disabled workers.
Your business or organization currently maintains or plans to maintain a health benefits plan for employees.
Your establishment is located in: New Jersey, 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.

Black Lung Benefits Act
Consumer Credit Protection Act (wage garnishments)
Employee Polygraph Protection Act (EPPA)
Employee Retirement Income Security Act (ERISA)
Fair Labor Standards Act (FLSA)
Fair Labor Standards Act (FLSA)/Child Labor
Fair Labor Standards Act (FLSA)/Section 14(c)
The Federal Mine Safety and Health Act
Occupational Safety and Health Act (OSH Act)
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Whistleblower Protection Provisions

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 IV, Federal Mine Safety and Health Act of 1977, as amended

The Black Lung Benefits Act (BLBA)

(30 USC §901 et seq.; 20 CFR Parts 718, 722, 725, 726, and 727)

Who is Covered

The Act provides for monthly payments to coal miners totally disabled due to pneumoconiosis (black lung disease) arising from employment in or around the nation's coal mines. Awarded miners may also receive medical benefits covering the care and treatment of their totally disabling pneumoconiosis. The BLBA also provides for monthly payments to certain survivors of miners who died due to pneumoconiosis or who were previously determined to be totally disabled due to the disease. Current and former coal miners (including certain coal transportation and coal mine construction workers who were exposed to coal mine dust) and surviving dependents (including spouses, children, and dependent parents or siblings) who meet specified entitlement conditions may be entitled to black lung benefits.

Individual coal mine operators are liable for the payment of benefits to miners. For purposes of determining responsibility for paying benefits, a coal mine operator includes: any owner, lessee, or other person who operates, controls, or supervises a coal mine or coal preparation plant; or any independent contractor performing services or construction at a mine; or certain entities involved in coal transportation

Basic Provisions/Requirements

Monthly benefits for eligible miners and their survivors are based on a percentage of the monthly salary of a GS-2, step 1 federal government employee. A chart of benefit rates can be found at the Department of Labor's Black Lung Monthly Benefits Rate Page. Benefit payments may be augmented for up to three dependents. Benefit payments are reduced by the amounts received for total or partial disability or death due to pneumoconiosis under state or other federal workers' compensation laws and, in some cases, by excess earnings. Benefits rates are adjusted periodically according to the percentage increase of federal pay rates.

Medical benefits are payable only to the miner and are limited to the treatment of conditions related to the miner's totally disabling pneumoconiosis. Medical benefits may include medical, surgical, and other expenses, such as hospital and nursing care, rehabilitation services, and drug and equipment charges.

Each coal mine operator is required to pay an excise tax on coal sold. The current tax rate is $1.10 per ton for underground-mined coal and $.55 for surface-mined coal, subject to a cap of 4.4 percent of the sales price. Proceeds from this tax finance the Black Lung Disability Trust Fund, which pays the cost of administering the BLBA and, in certain cases, benefits to eligible claimants. The Trust Fund pays the cost of black lung claims: in which the miner's last coal mine employment was before January 1, 1970; or in which the miner's last coal employment was after December 31, 1969 but no responsible coal mine operator has been identified; or in claims in which the responsible coal mine operator has defaulted on the payment of such benefits.

Coal mine operators (other than transportation and construction employers) must secure the payment of benefits for which they are liable either by qualifying as a self-insurer or by obtaining insurance through a commercial insurance carrier or a state agency. Operators must obtain approval from the Department of Labor to become self-insurers. To qualify, an operator must have been in the business of coal mining for at least three years; demonstrate the ability to service black lung claims and agree to service claims in a timely manner; meet minimum asset requirements; and obtain an indemnity bond or post other security to secure the payment of benefits, among other requirements. Operators whose applications to self-insure are denied may request reconsideration of that decision. When operators obtain commercial insurance, their obligations with regard to the payment of benefits and the provision of medical treatment are binding on the insurance carriers.

Coal mine operators are required to begin paying benefits within 30 days of an effective award containing a determination of their liability for the benefits. Where payment is made from the Black Lung Disability Trust Fund because the coal mine operator has refused to pay pending its appeal of an award, the liable operator must reimburse the Trust Fund for the benefits paid plus interest after the award is upheld.

Employee Rights

If a miner, or his or her survivor, or an employer or insurance carrier disagrees with a claim determination by the Division of Coal Mine Workers' Compensation, that party may request a formal hearing before an Administrative Law Judge. The Administrative Law Judge's decision may be appealed to the Benefits Review Board, and the Benefits Review Board's decision may be appealed to a U.S. Court of Appeals.

Notices/Posters

There are no federal workplace poster or notice requirements under the Black Lung Benefits Act.

Recordkeeping

There are recordkeeping requirements for employers under the BLBA.

Employers that pay benefits are required to keep a receipt for each payment made. A canceled check is sufficient proof of payment. The employer must retain each receipt for at least five years after the receipt was executed and must produce the receipts for inspection upon the request of OWCP.

Any employer permitted to self-insure its liabilities under the Act may be required to submit reports to OWCP concerning its self-insurance status. The employer is expected to maintain any books of account, records or other papers that would verify any financial statement or other information contained in such a report. At the request of OWCP, the employer must produce such material for inspection or examination. The failure to permit such inspection may result in a revocation of the employer's self-insured status.

Reporting

There are reporting requirements for employers, insurance carriers, medical providers, representative payees, and claimants under the BLBA.

Employers. The BLBA imposes numerous reporting obligations. Many of these are related to the BLBA's requirement that coal mine operators (except for coal mine construction or transportation employers) secure the payment of benefits through self-insurance or commercial insurance. A coal mine operator permitted to self-insure must submit any report that OWCP might request, such as, for example, a report addressing the employer's financial condition. The failure to submit any requested report could result in revocation of the employer's self-insurance status.

If an award of benefits is issued against an employer that has neither self-insured nor obtained commercial insurance, OWCP may require the employer to secure the payment of benefits by posting a bond, cash, or negotiable securities. In such a case, the employer is required to submit to OWCP, within 30 days, proof that it has complied with the request.

Any employer ordered to pay benefits under the BLBA must report to OWCP the first payment of benefits and any change (such as suspension, reduction, or increase) in benefits payments thereafter. Employers should use Form CM-908 to report the termination or suspension of benefits and a reduction or increase in benefit amounts. In addition, within 16 days after the final payment of benefits, the employer must file a report with OWCP indicating that fact and listing the name of the beneficiary, the total amount of benefits paid and any other information required by OWCP. OWCP may also require other reports it deems necessary for the efficient administration of the Act. The failure or refusal to file any such report subjects the employer to a civil penalty of up to $550 for each such failure or refusal.

If an employer is ordered to pay benefits to a miner, it must designate a person with decision making authority regarding medical benefits with whom the miner, the miner's providers and OWCP may communicate. The employer must also notify the miner, the miner's providers and OWCP of its designation. OWCP may require the employer or carrier to provide reports concerning the necessity, character or sufficiency of any medical care provided to the miner.

Insurance Carriers. A commercial insurance carrier is required to report each insurance policy or endorsement issued, canceled or renewed by the carrier to an operator. The reports must be sent by the carrier's home office, except that the carrier may authorize its agency or agencies to make such reports. Separate reports are required for each operator covered by a particular policy that is issued or renewed. Notice of cancellation must be given 30 days prior to the date the cancellation is to take effect. Carriers that are liable for benefits on behalf of an employer are required to report to OWCP immediately after making the initial benefit payment and after suspending the payment of benefits. Carriers are also required to provide any additional reports as OWCP may require for the efficient administration of the Act.

Medical Providers. Physicians or medical facilities that provide care for a miner-beneficiary are required, within 30 days of the first medical or surgical treatment, to provide a report of such treatment to the employer and OWCP. In addition, a medical provider may be required to submit additional reports concerning the necessity, character and sufficiency of medical care provided to the miner. The failure to provide any requested report may result in the denial of payment for medical services rendered.

Claimants. Individuals who are entitled to benefits are required to report to OWCP any circumstances that could affect their entitlement to benefits or the amount of benefits received. Claimants are encouraged to contact the Division of Coal Mine Workers' Compensation (DCMWC) with jurisdiction of their claim via telephone or mail immediately when a change occurs. Examples include, but are not limited to, marriage, the death of a dependent, a child no longer attending school as a full-time student, a change of address or the receipt of state workers' compensation benefits for total or partial disability due to pneumoconiosis. Additionally, claimants will receive CM-929 on an annual basis to report any such changes. Also, if a miner-beneficiary returns to coal mining or other comparable and gainful work, the miner must notify both the employer and OWCP immediately.

Representative Payees. If benefits are paid to a representative payee, that individual may be required to submit evidence to OWCP periodically addressing his or her continuing relationship to the claimant, responsibility for care of the claimant, or authority to accept payment. The representative payee may also be required to account for the use of all benefit payments certified to the payee. Representative payees should immediately contact the Division of Coal Mine Workers' Compensation (DCMWC) with jurisdiction of the claim via telephone or mail when any change potentially affecting benefit payments or the representative's status occurs. Examples include, but are not limited to, the claimant's marriage, a change of address for either the claimant or the representative payee or a change in the payee's ability to manage the funds. Additionally, representative payees will receive one of the following forms annually and should report any changes on it: Forms CM-929P, CM 623, or CM-623S. The failure to submit any such evidence or report will result in the termination of the individual's status as representative payee.

Compliance Assistance Available

To obtain additional information, contact the nearest Division of Coal Mine Workers' Compensation (DCMWC) or contact the DCMWC by phone at 1-800-347-2502, by fax at 1-202-693-1395, or by email at DCMWC-public@dol.gov.

In addition, the Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Black Lung Benefits Act. Compliance assistance related to the Act, including a Compliance Guide to the BLBA, forms, Questions and Answers (PDF), and regulatory and interpretive materials, is available on DCMWC's Black Lung Home Page.

Relation to State, Local, and Other Federal Laws

Federal black lung benefits are offset by state or other federal workers' compensation benefits for total or partial disability or death due to pneumoconiosis. If state or other federal black lung workers' compensation benefits are less than federal black lung benefits, the federal black lung program covers the difference. Social Security disability benefits are also reduced by the amount of federal black lung benefits received.

Penalties/Sanctions

The Department of Labor may suspend or revoke the authority to self-insure due to an operator's failure to comply with the BLBA and its regulations, the insolvency of the operator's surety on an indemnity bond, or impairment of the operator's financial responsibility. Revocation of the authority to self-insure or the failure to obtain insurance does not relieve operators of liability for the payment of benefits and the provision of medical treatment. Operators who fail to secure insurance may be subject to a civil money penalty of up to $1,100 for each day there is no insurance in effect.

A lien may be placed against the property of operators who fail to reimburse the Trust Fund for benefits paid on the operator's behalf. The Department of Labor may also seek an injunction in U.S. District Court to ensure that an operator's obligations under the BLBA are met and to prevent future noncompliance. Operators are also subject to payment of interest to the claimant, if benefit payments are not timely made, and to the Trust Fund, on benefits paid on the operator's behalf for which the operator is determined to be liable. Moreover, operators who fail to pay benefits within 10 days after payments become due, may be assessed an additional 20 percent of the benefits due, which is payable to the claimant.

Operators who knowingly conceal or dispose of any property to avoid the payment of benefits under the Act may be guilty of a misdemeanor and, if convicted, subject to a fine of $1,000, imprisonment for up to one year, or both.

DOL Contacts

Office of Workers' Compensation Programs (OWCP), Division of Coal Mine Workers' Compensation(https://www.dol.gov/owcp/dcmwc/districtoffices.htm)
E-mail: DCMWC-Public@dol.gov
Tel: 1-800-347-2502; TTY: 1-877-889-5627

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.

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.

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

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.

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.

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:

Small Business Retirement Savings Advisor: The Advisor provides answers to a variety of questions about retirement savings options for small business employers and determines which program is most appropriate for a business.
ERISA Fiduciary Advisor: The Advisor provides information and answers to a variety of questions about who is a fiduciary and their responsibilities under ERISA.
Health Benefits Advisor: The Advisor helps workers and their families better understand employer and employee organization provided group health benefits and the laws that govern them, especially when they experience changes in their life and work situations.
COBRA Continuation Coverage
An Employer's Guide to Group Health Continuation Coverage Under COBRA (PDF) Compliance Assistance Guide - Health Benefits Coverage Under Federal Law (PDF): Includes general descriptions of the four health care laws and FAQs.
Understanding Your Fiduciary Responsibilities Under a Group Health Plan - This publication provides an overview of the basic fiduciary responsibilities applicable to health plans under ERISA.
Meeting Your Fiduciary Responsibilities - This publication provides an overview of the basic fiduciary responsibilities applicable to retirement plans under the law.
Understanding Retirement Plan Fees and Expenses - This booklet will help retirement plan sponsors better understand and evaluate their plan's fees and expenses.
Selecting an Auditor for Your Employee Benefit Plan - Federal law requires employee benefit plans with 100 or more participants to have an audit as part of their obligation to file the Form 5500. This booklet will assist plan administrators in selecting an auditor and reviewing the audit work and report.
Employee Benefits Security Administration (EBSA) Compliance Assistance webpage
Affordable Care Act webpage
Mental Health Parity webpage
Pension Protection Act webpage
Frequently Asked Questions

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
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:

The Handy Reference Guide to the FLSA(https://www.dol.gov/whd/regs/compliance/hrg.htm)
Fair Labor Standards Act (FLSA) Coverage and Employment Status Advisor(/elaws/whd/flsa/scope/screen9.asp): Helps employers and employees understand and determine coverage of employees under the FLSA.
Fair Labor Standards Act (FLSA) Hours Worked Advisor(/elaws/whd/flsa/hoursworked/default.asp): Helps employers and employees determine which work-related activities are considered "hours worked" and thus hours for which employees must be paid.
Fair Labor Standards Act (FLSA) Overtime Security Advisor(/elaws/overtime.htm): Helps employees and employers determine whether a particular employee is exempt from the FLSA's minimum wage and overtime pay requirements.
Fair Labor Standards Act (FLSA) Overtime Calculator Advisor(/elaws/otcalculator.htm): Helps employers and employees compute the amount of overtime pay due in a sample pay period based on information from the user.
FLSA Fact Sheets: Topical Fact Sheet Index(https://www.dol.gov/whd/fact-sheets-index.htm)
Comprehensive FLSA Presentation (Microsoft^® PowerPoint^®)(https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/comprehensive.pptx)

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

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

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).

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.

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

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:

The Handy Reference Guide to the FLSA(https://www.dol.gov/whd/regs/compliance/hrg.htm)
Fair Labor Standards Act (FLSA) Coverage and Employment Status Advisor(/elaws/whd/flsa/scope/screen9.asp): Helps employers and employees understand and determine coverage of employees under the FLSA.
Fair Labor Standards Act (FLSA) Child Labor Rules Advisor(/elaws/whd/flsa/cl/default.htm): Helps young workers and their employers, parents, and educators understand the FLSA's child labor provisions, which dictate the hours youth can work and the jobs they may and may not perform.
Fair Labor Standards Act (FLSA) Hours Worked Advisor(/elaws/whd/flsa/hoursworked/default.asp): Helps employers and employees determine which work-related activities are considered "hours worked" and thus hours for which employees must be paid.
FLSA Recordkeeping Fact Sheet(https://www.dol.gov/whd/regs/compliance/whdfs21.pdf): Explains recordkeeping requirements under the Act.
Comprehensive FLSA Presentation (Microsoft^® PowerPoint^®)(https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/comprehensive.pptx)

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

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

(29 USC Â§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:

The Handy Reference Guide to the FLSA(https://www.dol.gov/whd/regs/compliance/hrg.htm)
Fair Labor Standards Act (FLSA) Section 14(c) Advisor(/elaws/whd/flsa/14c/): Helps employers, employees and their family members understand FLSA Section 14(c), which authorizes employers, after receiving a certificate from the Department of Labor, to pay less than the Federal minimum wage to workers who have disabilities for the work being performed.
Fair Labor Standards Act (FLSA) Coverage and Employment Status Advisor(/elaws/whd/flsa/scope/screen9.asp): Helps employers and employees understand and determine coverage under the FLSA.
FLSA Recordkeeping Fact Sheet(https://www.dol.gov/whd/regs/compliance/whdfs21.pdf): Explains recordkeeping requirements under the Act.

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

The Federal Mine Safety and Health Act of 1977 (Mine Act)

(30 USC Â§Â§ 801 et seq.; 30 CFR Parts 1 to 199)

Who is Covered

The Federal Mine Safety and Health Act of 1977 (Mine Act), as amended by the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), is administered by the Mine Safety and Health Administration (MSHA). The Act covers all mine operators and miners throughout the U.S., including the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands. Under the Mine Act, a mine "operator" is defined as: "any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." A "miner" is any "individual working in a coal or other mine." As of calendar year 2015, the Mine Act covered approximately 350,000 miners and over 13,000 mines.

Basic Provisions/Requirements

The Mine Act requires MSHA to inspect each surface mine at least 2 times a year and each underground mine at least 4 times a year. (MSHA inspects seasonal or intermittent mining operations less frequently). Under the Mine Act, MSHA is prohibited from giving advance notice of an inspection, and it is authorized to enter any mine without a warrant.

The Mine Act requires additional inspections to ensure safe and healthy work environments for miners. For example, MSHA must provide additional inspections at a mine that releases large amounts of methane gas or other explosive gases or where there exists other especially hazardous conditions. . In addition, MSHA must investigate all fatal accidents and complaints of discrimination based upon the exercise of rights under the Mine Act.

To promote compliance with the requirements of the Mine Act or any MSHA mandatory safety and health standard, rule, order or regulation, MSHA must issue a citation to a mine operator for any violation found during an inspection or investigation. MSHA must notify the operator within a reasonable time of the civil penalty proposed to be assessed for the violation cited. All violations must be corrected within a reasonable time established by MSHA.

The Mine Act permits a representative of the operator and a representative of the miners to accompany MSHA during an inspection for the purpose of aiding the inspection and to participate in pre- or post-inspection conferences at the mine. The representative of the miners who is also an employee of the operators shall suffer no loss of pay during the time of his participation in the inspection. If a violation is cited, the circumstances surrounding the violation are discussed during the post-inspection conference. If these discussions do not result in resolution, the mine operator may contest the citation or proposed assessment of penalty before the Federal Mine Safety and Health Review Commission, an independent body, with further appeal to a U.S. Court of Appeals.

The Mine Act requires MSHA to promulgate new or improved mandatory safety or health standards to protect life and prevent injuries. Under the Mine Act, mine operators must notify MSHA when they open or close a mine. In addition, operators may request the modification of the application of a safety standard at a mine. MSHA may grant a modification if it determines that the operator's proposed alternate method of compliance with the standard guarantees no less than the same measure of protection afforded the miners by the standard, or application of the standard at the mine will result in a diminution of safety to the miners.

The MINER Act

Basic Provisions/Requirements

The Mine Improvement and New Emergency Response Act of 2006, also known as the MINER Act, was signed into law on June 15, 2006. This legislation, the most significant mine safety legislation in 30 years, amends the Mine Safety and Health Act of 1977 and contains a number of provisions to improve the safety and health in America's mines. The MINER Act's key provisions:

Requires each underground coal mine operator to develop and continuously update a written emergency response plan;
Promotes use of equipment and technology that is currently commercially available;
Requires each mine's emergency response plan to be continuously reviewed, updated and re-certified by MSHA every six months;
Directs the Secretary of Labor to require wireless two-way communications and an electronic tracking system within three years, permitting those on the surface to locate persons trapped underground;
Requires each underground coal mine operator to make available to each mine two experienced mine rescue teams capable of a one hour response time;
Requires mine operators to notify MSHA within 15 minutes of a death at the mine or an injury or entrapment at the mine which has a reasonable potential to cause death, and establishes a civil penalty of $5,000 to $60,000 for mine operators who fail to do so;
Requires MSHA to finalize mandatory health and safety standards relating to the sealing of abandoned areas in underground mines;
Requires NIOSH to establish an interagency working group to share technology and technological research and developments that could be used to enhance mine safety and accident response;
Raises the maximum criminal penalty to $250,000 for first offenses and $500,000 for second offenses. In addition, establishes a maximum civil penalty of $220,000 for flagrant violations;
Establishes a Technical Study Panel on the use of belt air and fire retardant belt materials in in underground coal mines;
Gives MSHA the authority to obtain an injunction (shutting down a mine) in cases where the mine operator has refused to pay a final civil penalty assessment; and
Establishes the Brookwood-Sago Mine Safety Grants program to provide training grants to better identify, avoid, and prevent unsafe working conditions in and around the mines.
Requires NIOSH to conduct research on refuge alternatives and MSHA to report on proposed regulatory changes.

Employee Rights

A good safety and health program depends on the active participation and interest of everyone at a worksite. Because Congress wanted to encourage an active, responsible role in matters of mine safety and health, the Mine Act gives miners many rights. Deaths, injuries, and illnesses in the workplace can be decreased if all miners exercise these rights. Under the Mine Act, miners, representatives of miners, and applicants for employment at a mine are all "miners." All miners including supervisors, contractors, construction or demolition workers, and truck drivers working at a mine are considered to be "miners" and may exercise the rights given them under the Act.

The Mine Act gives a miner the right to:

Designate a representative to accompany an MSHA inspector during an inspection without loss of pay ("walk-around" rights)
Report hazardous conditions and make a complaint of an alleged danger or safety or health violation to MSHA, a state agency, a mine operator, an operator's agent or a miner's representative.
Obtain an inspection of the mine where reasonable grounds exist to believe that an imminent danger, or a violation of the Act or of a safety or health standard exists;
Receive health and safety training during normal working hours and to be paid for that time at the regular rate of pay.
Withdraw from the mine for not having the required health and safety training;
Be paid during certain periods of time when a mine or part of a mine has been closed because of a withdrawal order;
Be protected against discrimination based on the exercise of rights under the Act; and
Be informed of, and participate in proceedings under the Mine Act such as: testifying, assisting, or participating in any proceeding instituted under the Act, or filing a complaint with the Federal Mine Safety and Health Review Commission.
A medical evaluation or to be considered for transfer to another job location because of harmful physical agents and toxic substances. For example: a coal miner has the right to a chest x-ray and physical examination for black lung disease (pneumoconiosis) and potential transfer to a less dusty position if the miner has a positive diagnosis.
Refuse to work in unsafe or unhealthy conditions. NOTE: You must notify the operator of the condition and give them an opportunity to address the situation.
Exercise any statutory rights afforded by the Mine Act.

Moreover, applicants for work at a mine have the right not to be discriminated against in hiring because they have previously exercised a right under the Mine Act.

Miners' representatives also have specific rights under the Act in addition to those rights given to individual miners. Miners' representatives have the right to accompany inspectors on any type of Section 103(a) inspection involving direct enforcement activities such as: regular inspections; spot inspections; inspections conducted at the request of miners or their representatives; inspections of especially hazardous mines; and inspections made in conjunction with accident investigations. Miners' representatives also have the right to be paid for time spent participating in health and safety inspections at their mine under certain circumstances. In addition, they have the right to review all citations and orders that are issued at their mine and to request a conference about them.

Miners' representatives are entitled to a copy of the following plans and plan revisions prior to a mine operator's submittal of such plan for MSHA approval:

Part 46 Training Plan
Part 48 Training Plan
Roof Control Plan
Mine Ventilation Plan
Mine Emergency Evacuation and Firefighting Program of Instruction
Emergency Response Plan

A mine operator must provide with the plan submittal to the District Manager any comments and concerns raised by miners and miners' representatives.

If a miner, representative of miners, or job applicant, has general or specific questions about rights under the Act, he or she should contact the nearest MSHA Enforcement Offices.

Family liaison. Section 7 of the MINER Act requires MSHA to assign an individual to serve as a Family Liaison between MSHA and the families of victims of mine tragedies involving multiple deaths. MSHA is to be "as responsive as possible to requests from the families of mine accident victims for information relating to mine accidents." In addition, in such accidents, MSHA must "serve as the primary communicator with the operator, miners' families, the press, and the public."

Notices/Posters

There is no workplace poster requirement under the Mine Act.

Unlike the Occupational Safety and Health Act of 1970, there is no workplace poster requirement which informs miners of their rights under the Mine Act. However, the Mine Act includes the following posting requirements for mine operators.

Section 101(e) of the Mine Act requires that MSHA send a copy of every proposed mandatory health or safety standard or regulation at the time of publication in the Federal Register to the operator of each mine and the representative of the miners at such mine and that the mine operator immediately post the standard or regulation on the mine bulletin board.

Section 109(a) of the Mine Act requires a mine operator to maintain at each mine an office with a conspicuous sign designating it as the office of such mine. In addition, a mine operator must maintain a bulletin board at the mine office or at a conspicuous place near an entrance of the mine and must post and protect from damage and unauthorized removal orders, citations, notices and decisions required by law or regulation to be posted.

In addition to the Mine Act posting requirements, several MSHA standards and regulations require mine operators to post notices or warnings. These requirements can be found here.

Recordkeeping

Section 103(d) requires recordkeeping regarding all accidents, including unintentional roof falls (except in any abandoned panels or in areas which are inaccessible or unsafe for inspections). The accidents must be investigated by the mine operator or his agent to determine the cause and the means of preventing a recurrence. Records of such accidents and investigations must be kept and the information must be made available to MSHA and the appropriate State agency. The records must be open for inspection by interested persons, include man-hours worked, be reported at a frequency determined by MSHA, but at least annually.

In addition to the Mine Act recordkeeping requirement, MSHA's regulations and mandatory safety and health standards published in Title 30 of the Code of Federal Regulations contain recordkeeping and reporting requirements. Recordkeeping forms can be found here.

Reporting

There are reporting requirements for Mine Operators, Independent Contractors, and approved Training Instructors.

Mine operators are required to:

Apply for a mine identification number(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/mine-id-request). All mines are required to apply for an MSHA mine identification number. An MSHA ID is required for each mine site and must be issued before any operations may begin. The MSHA Identification (ID) Request(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/mine-id-request) (MSHA Form 7000-51) can be filed on-line or by contacting the local MSHA district office.(https://www.msha.gov/about/program-areas/coal-mine-safety-and-health#FO)

File a legal identification number(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/legal-identification-report). Within 30 days of applying for a Mine ID or when there are any changes to the legal ownership structure for a mine, a mine operator must file a Legal Identification Report with MSHA. The MSHA Form 2000-7(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/legal-identification-report) can be filed online or by contacting the local MSHA district office. A mine operator must provide a Taxpayer Identification Number(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/legal-identification-report).

File a mine employment and coal production report(https://www.msha.gov/support-resources/forms-online-filing/2015/04/15/quarterly-mine-employment-and-coal-production). The Quarterly Mine Employment and Coal Production Report (MSHA Form 7000-2(https://www.msha.gov/support-resources/forms-online-filing/2015/04/15/quarterly-mine-employment-and-coal-production)) must be filed within 15 days after the close of each calendar quarter. Written forms filed after the 15 day period will be considered late; however, online filing for this form is open for a period of 25 days from January 1, April 1, July 1, and October 1 of each year.

Report hazardous conditions. All impoundment and dust fraud inquiries/complaints can be made to the MSHA Codeaphone line(https://www.msha.gov/about/contact/emergencies) (1-800-746-1553). Callers should include as much of the following information as possible:

Name of company
Name of mine
Location of mine (city/town)
State where mine is located
The MSHA ID for the mine if known. A search can be done for an MSHA ID by either mine name or company name using MSHA's Data Retrieval System(https://www.msha.gov/mine-data-retrieval-system) (DRS).

The complaint form is intended for reporting hazardous conditions at mine sites only, and is not to be used for any other purpose.

Report accidents, injuries, and illnesses. Incidents of accident, injury, or illness are to be reported to MSHA using Form 7000-1(https://www.msha.gov/support-resources/forms-online-filing/2015/04/14/mine-accident-injury-and-illness-report), whether the workers involved are employees of the mine operator or employees of a contractor. For incidents or accidents which pose a reasonable risk of death, mine operators must report them within 15 minutes. Otherwise, the form must be completed and mailed or submitted online within 10 working days after an accident or occupational injury occurs, or an occupational illness is diagnosed. The principal officer in charge of health and safety at the mine or the supervisor of the mine area where the incident occurred is responsible for completing the Form 7000-1. A separate Form 7000-1 is required on each accident, whether a person was injured or not. A form is required for each individual who became injured or ill, even when several individuals were injured or made ill in a single occurrence.

Mine operators must call immediately, but not later than 15 minutes from the time they know or should know that an accident has occurred. To report these immediately reportable accidents, and injuries(https://www.msha.gov/about/contact/emergencies) call 1-800-746-1553. "Immediately Reportable Accidents and Injuries" include:

A death of an individual at a mine
An injury to an individual at a mine which has a reasonable potential to cause death
An entrapment of an individual for more than thirty minutes or which has a reasonable potential to cause death
An unplanned inundation of a mine by a liquid or gas
An unplanned ignition or explosion of gas or dust
In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery
An unplanned ignition or explosion of a blasting agent or an explosive
An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use; or, an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage
A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour
An unstable condition at an impoundment, refuse pile, or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area; or, failure of an impoundment, refuse pile, or culm bank
Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than thirty minutes
An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs

Note: Injuries not related to one of the twelve types of accidents(https://www.ecfr.gov/cgi-bin/text-idx?SID=6f47826642f2eb11e0180229ca01fa87&mc=true&node=pt30.1.50&rgn=div5#se30.1.50_12), such as ordinary sprains, strains, minor cuts, minor burns, bruises or other injuries that are not life-threatening, do not require immediate notification. These types of injuries should be reported via the 7000-1(https://www.msha.gov/support-resources/forms-online-filing/2015/04/14/mine-accident-injury-and-illness-report) form.

Failure to report an accident, injury or illness can result in a citation and assessment of a civil penalty against a mine operator(https://www.dol.gov/compliance/guide/msha.htm#who).

Report Self-Contained Self-Rescuers (SCSRs). A mine operator is required to file a report of inventory of all SCSRs used or stored at a mine. A mine operator may use MSHA Form 2000-222(https://www.msha.gov/support-resources/forms-online-filing/2015/04/15/self-contained-self-rescuer-scsr-inventory-and). A mine operator also shall report to MSHA any defect, performance problem, or malfunction with the use of an SCSR. The report shall include a detailed description of the problem and, for each SCSR involved. An operator must retain the problem SCSR for 60 days.

Report individual exposure to Radon Daughters. Each mine operator must report individual exposure to radon daughters(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/record-individual-exposure-radon-daughters) on or before February 15 of each calendar year, or within 45 days after the shutdown of mining operations for the calendar year. Each mine operator is required to submit to MSHA a copy of Form 4000-9(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/record-individual-exposure-radon-daughters) (or acceptable equivalent form), for all personnel for whom calculation and recording of exposure was required during the previous calendar year.

Independent contractors are required to:

Report MSHA contractor identification. Independent contractors are required to apply for an MSHA contractor identification number using the Contractor Identification (ID) Report(https://www.msha.gov/support-resources/forms-online-filing/2015/04/15/contractor-id-request) (MSHA Form 7000-52). An MSHA ID is required for each contractor operating a mine site and must be issued before they begin specific activities.

Report accidents, injuries, and illnesses. If an accident, injury or illness occurs at or in conjunction with activity at a mine, independent contractors are required to report the circumstances of the incident to MSHA using Form 7000-1, The Mine Accident, Injury and Illness Report(https://www.msha.gov/support-resources/forms-online-filing/2015/04/14/mine-accident-injury-and-illness-report).

Report immediately reportable accidents and injuries. An independent contractor must call immediately, but not later than 15 minutes from the time they know or should have known that an accident has occurred. To report these immediately reportable accidents and injuries call 1-800-746-1553.

Report employment and production information. Independent contractors are also required to report employment and production information to MSHA using Quarterly Mine Employment and Coal Production Report (MSHA Form 7000-2)(https://www.msha.gov/support-resources/forms-online-filing/2015/04/15/quarterly-mine-employment-and-coal-production) for each quarter of operation and at each mine at which activity is performed.

Approved MSHA Instructors are required to:

Report electrical training. Approved MSHA instructors are required to submit the names of persons who have satisfactorily completed the Certificate of Electrical/Noise Training (MSHA Form 5000-1).(https://www.msha.gov/support-resources/forms-online-filing/2015/04/15/certificate-electricalnoise-training)

Report mine foreman training. Approved MSHA instructors are required to submit the names of persons who have satisfactorily completed mine foreman and pre-shift examiner or hoisting certification training using Health Activity Certification or Hoisting Engineers Qualification Request (MSHA Form 5000-41)(https://www.msha.gov/support-resources/forms-online-filing/2018/05/23/health-activity-certification-or-hoisting-engineers).

Compliance Assistance Available

MSHA develops safety and health training programs in cooperation with industry and labor; tests new mining equipment; works with other agencies to advance safety and health research programs; and compiles and analyzes accident, injury, and illness data to better address serious workplace hazards. MSHA has developed booklets, pamphlets, and pocket-size laminated cards that address known safety and health hazards and identify acceptable compliance processes. MSHA routinely distributes its accident prevention materials to the mining industry at large, or to those sectors of the industry that are experiencing the injuries addressed by the materials. MSHA also has a number of elaws Advisors that provide assistance in understanding and applying MSHA's regulations.

MSHA's Web site contains compliance assistance information, guidance, and helpful tips for the mining community. For example, it lists upcoming seminars designed for mine operators and others to receive the latest information about the requirements of a rule or to hear about solutions to various safety and health problems. Also, the website provides model forms, records, and plans for the mine operator to use to comply with MSHA requirements, thus avoiding the need for the operator to create these items independently. Through the Web site, mine operators may file various reports directly with MSHA.

Among the many resources available are:

MSHA Online Forms: Provides access to MSHA forms and online filings.
elaws MSHA Online Forms Advisor: Allows users to learn about and access the MSHA forms that can be filed online or accessed and completed online.
Safety and Health Topics: Provides links to specific compliance information on various safety and health issues found in the mining industry, including those related to equipment, chemicals, and working conditions (e.g., mine safety control systems, mercury and heavy metals, and noise).
Interactive Training Products: Provides training exercises that promote health and safety in mining.

Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on MSHA's Compliance Assistance page.

Training and education. The National Mine Safety and Health Academy, is in Beckley, West Virginia. The mission of the Academy is to reduce accidents and improve health conditions in the mining industry through education and training. To fulfill this mission, the Academy conducts a variety of education and training programs in health and safety and related subjects for Federal mine inspectors and other government mining and industry personnel. A "Mine Simulation Laboratory," located on the Academy grounds, provides hands-on training in rescue and recovery operations for certain mine emergencies."

MSHA's Approval and Certification Center (A&CC), located near Wheeling, West Virginia, approves and certifies certain mining products for use in underground coal and gassy underground metal and nonmetal mines. The A&CC also is responsible for monitoring the performance of approved products to ensure that they meet the standards under which they were originally approved.

Consultation services. MSHA's Educational Field and Small Mine Services (EFSMS) Division provides assistance in the development or improvement of the health and safety programs of mine operators and contractors in the mining community. The EFSMS specializes in developing programs tailored to reduce the number of injuries and illness' in the mining industry. Additionally, the EFSMS group evaluates industry instructors to ensure miners receive quality and effective training. EFSMS staff are located in 35 states and travel extensively to mines and training centers to provide assistance that will strengthen and modernize training.

The Brookwood-Sago grant program. The Brookwood-Sago Grants Program was established by the Mine Improvement and New Emergency Response Act of 2006 (MINER Act). It was named in remembrance of 13 men who died in two explosions at the Jim Walter Resources Inc.'s No. 5 Mine in Brookwood, Alabama, in 2001 and 12 men who died in an explosion at Wolf Run Mining Company's Sago Mine in Tallmansville, West Virginia in 2006. The funds are used to develop and implement training and related materials for mine emergency preparedness as well as for the prevention of accidents in underground mines. MSHA publishes a "Solicitation for Grant Application" in the Federal Register notifying the public when grant funds are available and posts a notice on its website.

Relation to State, Local, and Other Federal Laws

The Mine Act does not give MSHA the authority to cede its responsibilities to states or any other political subdivisions. The Mine Act does not preempt state mine safety and health laws, except insofar as they may conflict with the Mine Act or MSHA's regulations. States may have more stringent health and safety standards.

Penalties/Sanctions

The Mine Act established a maximum penalty of $10,000 per violation against mine operators for violations found and cited. As a result of the Omnibus Budget Reconciliation Act of 1990, the maximum was increased to $55,000. The MINER Act amended section 110 of the Mine Act raising the maximum civil penalty to $220,000 for violations that are deemed to be flagrant. In addition, the MINER Act established minimum penalties of $2,000 and $4,000 for unwarrantable failure violations, and increased penalties for operators who fail to timely notify MSHA of certain accidents.

On March 22, 2007, MSHA published a final rule amending 30 CFR Part 100 to implement the MINER Act provisions and to increase the penalties across the board from the existing regulations. Under the amended 30 CFR Part 100, all violations (including non-serious violations) are assessed using a formula that incorporates six criteria set forth in sections 105(b) and 110(i) of the Mine Act. These criteria are:

The appropriateness of the penalty to the size of the business of the operator charged;
The operator's history of previous violations;
Whether the operator was negligent;
The gravity of the violation;
The demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of a violation; and
The effect of the penalty on the operator's ability to continue in business.

The higher penalties in the final rule are intended to increase the incentives for mine operators to prevent and correct violations. Penalties, however, increase more significantly for large mine operators, operators with a history of repeated violations of the same standard, and for operators whose violations involve high degrees of negligence or gravity. The maximum penalty for a regular assessment is now $70,000.

Some violations are of such a nature or seriousness that use of the formula would not result in an appropriate penalty. In these cases â€” most often involving fatalities, serious injuries, and unwarranted failure to comply with standards â€” MSHA may waive the formula and propose a "special assessment." In developing such an amount, the facts are independently reviewed to determine a penalty amount that will have the deterrent effect contemplated by the Mine Act. Title 30, Section 100.5 of the Code of Federal Regulations contains the regulations governing this civil penalty process.

The Mine Act also provides for either civil penalties against individuals for "knowing" violations, or criminal sanctions against mine operators who "willfully" violate safety and health standards. MSHA reviews particular citations and orders for possible knowing or willful violations. In general, the violations reviewed include those involving imminently dangerous situations and a high degree of negligence or reckless disregard. MSHA initiates and conducts investigations of possible knowing or willful violations. If evidence of willful violations is found, the case is referred to the Department of Justice.

DOL Contacts

Mine Safety and Health Administration (MSHA)(http://www.msha.gov)
Contact MSHA(https://www.msha.gov/about/contact-msha)
Tel: 1-800-746-1553; TTY: 1-877-889-5627

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

(29 USC Â§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:

By telephone to the nearest OSHA Area Office during normal business hours.
By telephone to the 24-hour OSHA hotline (1-800-321-OSHA or 1-800-321-6742).
Report online on OSHA's website.

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 Â§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

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

Whistleblower Protection Provisions

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

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

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

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

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

Clean Air Act (CAA), 42 USC Â§ 7622

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

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

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

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

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

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

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

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