Temporary Travel Assignments and the Service Contract Act

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From time to time, I get asked how employers should pay an employee who has been temporarily posted to a Service Contract Act ("SCA") contract at a locale other than the worker’s home base.  Do you pay the home base wage determination (“WD”) rates, the new locale rates, and if there is no WD for the new locale do you request one?  This isn’t a subject that is explicitly covered in the statute or regulations.  Nor is there any written guidance that I know of on the subject. There may be some guidance from the DOL Administrative Review Board (“ARB”) or the earlier Board of Service Contract Appeals ("BSCA"), but that would have to be researched. It isn’t clear there is any definitive answer. 

When I was a young lawyer, I went to a meeting at the US Department of Labor with my mentor, Gil Ginsburg and we met with William Gross, who was then the Assistant Administrator of Wage and Hour. This was probably more than 25 plus years ago. Mr. Gross later became the Chief of the Wage Determination Section.  He is now retired.  Gil asked at the meeting how contractors should handle the situation where workers are on travel, away from their home base of work, under the SCA.  Mr. Gross' reply was that if the travel was for temporary or for brief duration, you should just pay the SCA wage rate set for the home base.  The thing I found interesting at the time is that he said if it was less than two months you could apply that rule. In Mr. Gross' view, contractors only had to ask for new WD for the missing site, or pay the rate specified for a different site, if the worker was going to be there for 2 months or more.  Then it wasn't a temporary posting.  

I have used this story many times over the years with clients.  Unfortunately, Mr. Gross was not the Wage and Hour Administrator and I have never seen this advice in writing. Thus, you may not be able to rely on it since he didn't have apparent authority to issue any official advice.  In other words, someone else at DOL could differ in his or her interpretation.  As a result, I have cautioned clients to think about being more conservative.  If someone is posted at a specific site with a higher level WD for a month or more, it may be prudent to adjust the rate of pay to reflect the actual site of the work.  That is just my cautious approach.  If they are assigned there for less than a month, or if they are traveling to numerous sites over a period of time, with no stay as long as a month in any one place, then I think you just continue to pay them at their home base SCA wage rate.  

If this rule of thumb suits you, then just implement the above policy.  For short periods just pay the home base WD rate. For longer travel periods, where there are existing WDs in the contract for the alternate locales, especially if the stay is two months or more, pay the appropriate rate for the alternate work site. And where there is no WD in the contract for the alternate work site, ask the CO to request a WD and add it to the contract.  See FAR 52.222-49 Service Contract Act -- Place of Performance Unknown clause,  that is likely in your contract.  It sets up a process to request a new WD for the missing locale and provides for no adjustment in price on fixed price contracts. That means no upward adjustment for higher wage costs, and it also means no downward adjustment for lower wage costs, at least in my judgment.  

Whatever you do, be prepared to defend your pay practices as reasonable.