The FLSA, DBA and SCA “Posting” Requirement

The Fair Labor Standards Act (“FLSA”) has a posting requirement which applies to most government contractors. Every employer employing workers subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice explaining the requirements of the FLSA, as prescribed by the Wage and Hour Division (29 C.F.R. §516.4.) The notice must be posted in a “conspicuous” place in every establishment where such employees work, so as to permit them to readily observe a copy.  An employer that also employs exempt workers may alter or modify the poster with a legible notation to show that the overtime provisions do not apply — for instance, “Overtime Provisions Not Applicable to Taxicab Drivers.” Copies of the poster can be found at the DOL website, or you can use commercial vendor products, since FLSA posters are commonly packaged with other general labor posters required by law. See https://www.dol.gov/whd/regs/compliance/posters/flsa.htm.  If a poster is not in place, DOL will charge a recordkeeping violation and instruct the employer to correct the situation. DOL can approve requests to post photographically reproduced posters of reasonable size (Field Operations Handbook §30a06 and §30a07).

The Service Contract Act (“SCA”) also contains a “posting” requirement. By that we mean that contractors are supposed to post the standard SCA DOL poster at every work site where services are being performed.  See 29 C.F.R. §4.184.  Here is a link to the DOL SCA poster:  https://www.dol.gov/whd/regs/compliance/posters/sca.htm.  And the contractor is also supposed to post the SCA wage determinations or furnish them separately to each covered worker. Id. at §4.183. Perhaps this is easier said than done if you have many contracts, multiple wage determinations, and many performance locations. The items are to be posted in a “prominent and assessible place.” The requirement to post flows down to subcontractors too.

The Davis-Bacon Act ("DBA") has its own posting requrements. See the DOL poster at  https://www.dol.gov/whd/regs/compliance/posters/davis.htm. 

The failure to post is a common FLSA,  DBA  and SCA violation.  It may not have much consequence by itself. But if it is joined to a substantive violation of the SCA or DBA, like the failure to pay appropriate wages or fringe benefits, or overtime under the FLSA, DOL will cite the failure to post as a separate and independent violation of the law.  And it may be used to justified liquidated (i.e., double) damage penalties under the FLSA, or the extension of the statute of limitations due to "tolling." Thus, it is an aggravating circumstance. And you may see it discussed in a SCA or DBA debarment case that there were aggravated or no unusual circumstances arising from the independent violation arising from the failure to post the standard notice and/or wage determination. 

This is one FLSA, DBA and SCA problem that good HR practices can avoid. Get yourself copies of the DOL posters. Don’t rely on those generic so-called “5 in 1” posters sold by commercial vendors to keep you in compliance. They generally do not include the SCA or DBA poster in their products. Also, tack up DBA and SCA wage determination from your contract on your HR bulletin boards.

Or better yet, start a SCA and DBA HR intranet. Put the poster and the wage determination on your intranet. Make sure your DBA and SCA covered workers are informed of the intranet’s existence in their orientation job packages. Email intranet notices to existing workers.  It is easier to post electronically in one place and update it, unless you only have a few places of performance.

This is one compliance step that every government construction and  service contractor can take proactively.