Deborah Lastowka: For joining us for today's TAP webinar.  Today we will be hearing from Eva Auman with the Office of the Assistant General Counsel for Labor and Pension Law on the topic of Davis Bacon Act compliance.  Eva will go through her entire presentation, but as she's speaking, if you have any questions, you should feel free to type them into your Questions pane.  That's located in your Control Panel.  And then at the end of the presentation, like I said, we'll have time to address those. 

This webinar will be recorded and we will be posting those assets, the recording, and the PowerPoint presentation to the TAP website, and you'll be receiving that information in an e mail after today's webinar.  Normally, we would go through a little information about the TAP program, but today we're just going to dive in to the topic.  So I'm going to go ahead and throw it over to Eva. 

Eva Auman: Okay, I think I have it.  All right.  I'm hoping that this webinar will provide you some good background and that if you have any questions, you're able to answer them and I do want to say that if we do not get through all the questions, I am happy to take all the questions and then I will answer them and we can post all of them with the answers to the presentation so that everybody [Break in audio] the answers in case we don't get through it.  So what I'm going to do is just give you kind of a basic background of what the Davis Bacon Act is and we're going to go through some of the issues that you're going to see come up. 

So the first thing is that there are more than one labor standard.  DBA is one of the labor standards and the most important one that you're going to be interested in.  The Davis Bacon Act is applicable to government contracts and also to grants and financial assistance agreements, loan guarantees, loans – those types of things.  And Davis Bacon is made applicable to those within the Appropriations Act.  The other issue that you're going to be involved with is the Contract Work Hours and Safety Standards Act, the Copeland Anti Kickback Act. 

You will not probably be dealing much with the Walsh-Healey Public Contracts Act unless you are one of the Department's prime contractors that enters into contracts to perform the mission of the agency.  It's also the McNamara O'Hara Service Contract Act, which we just abbreviate the Service Contract Act.  And again, our grantees, loan guarantee entities will not be involved with the Service Contract Act and it's not applicable to the Financial Assistance Agreement.  There's the Miller Act, which requires bonds for government construction projects, and then the Fair Labor Standards Act.  You do need to really be also aware of the Fair Labor Standards Act because most individuals in the United States, not all, but most business entities are subject to the Fair Labor Standards Act, and it requires minimum wage and overtime payments. 

So what is the purpose of these?  Well, the purpose of them is to implement the war on poverty and to protect local communities and workers from non-local contractors doing underbidding.  When the Davis Bacon Act was enacted in 1931, some of the northern states were – senators were concerned that they were doing all these big projects for the Depression.  And oftentimes, a contractor from a southern state would bring in workers who were more willing to work for less wages than those in the north.  And they were concerned that that was driving down even further the wages that were available to workers. 

So the Davis Bacon Act, as I mentioned, is applicable to the contracts in the United States in excess of $2,000 for construction, alterations and repair, including painting and decorating.  And, of course, it says of public buildings or public works.  As we'll get to in a moment for grants and loan guarantees, it does not have to be a public building.  The U.S. consists of the states of the United States and the District of Columbia, not the territories.  However, Congress does bring in the territories in some instances on which they require the Davis Bacon to be applied by the territories. 

Some of those acts include some of the Housing Acts that are grants that are funded through HUD, a lot of the transportation grants, those sorts of things, but not the Recovery Act.  Congress did not make the Davis Bacon Act applicable to the territories for the Recovery Act.  So the Davis Bacon Act requires all contractors and subcontractors to pay their laborers and mechanics and that's sort of a term of art.  It's not just people who are classified as laborers or just people who are classified as mechanics, but it's a kind of a term of art.  It applies to the skilled craft of construction. 

And if they're on this contract, they're entitled to certain minimum wage and fringe benefits.  And that's determined by the Secretary of Labor and the locality where the work is being done.  The DOL, Department of Labor regulations are found at 29 CFR and Parts 1, 3 and 5.  One big thing that you have to really watch and we found to be a big sticking point for a lot of contractors in 2014 is that it requires the payment of the wages weekly.  And so employers who usually pay biweekly or even semimonthly, they really have trouble because they're going to have to go and revamp their payroll to pay those workers on a weekly basis. 

Now, the Davis Bacon and Related Acts, as I said, Congress provides financial assistance and these applicable to the grants and other financial assistance such as loan guarantees and loans, that sort of thing.  So we have the grants, loans, loan guarantees, insurance, and then, of course, we also talked about the fact that they often extend them to the territories.  So I did want to talk to you a little bit because initially, when the Recovery Act came out, we had many grantees who were calling in and saying, "Well, we're not performing work on a public building.  We're doing, for example, weatherization on residential individual homes." 

And so for the DBRAs, it does not have to be a public building.  And how Congress sets these out is that they reference the prevailing wage requirements and then say "as set by the Secretary of Labor."  So as I mentioned earlier, the Recovery Act is one of the DBRAs.  And for example, in the Recovery Act, how Congress made – the language is that the DBA requirements are applicable to projects funded directly by or assisted in full or in part by the federal government.  So if any project, no matter what it is, if it involves construction, there's going to be the requirement for Davis Bacon to apply to the construction. 

So I'm going to give you a little bit of information here.  The Department of Labor has some Recovery Act guidance and you can sign that on their All Agency Memorandums.  And we had 207, which was written in 2009 and it talks about the labor standards under Division A.  And Division A appropriation has to do with grants and some bonds, that sort of thing.  208 talks about specifically the bonds section and so I've provided that note for you, so that if you get stuck on something, you can always go to one of those All Agency Memorandums and see if you can get an answer and if not, you can always send us questions. 

The Contract Work Hours and Safety Standards Act came into being in order to require certain contractors – and those were the ones who have contracts over $150,000.  So the contractor – and they must then pay for time and a half, for any hours worked over 40 in a work week.  And the Contract Work Hours and Safety Standards Act also prohibits working in hazardous to dangerous conditions on these projects.  So the Department of Labor will be working to make sure that the overtime is correct and if it's not, that any back pay is made and there are liquidated damages under the Contract Work Hours and Safety Standards Act, which are $10 per day that an employee is not paid properly.  So that doesn't sound like much and when you really look at it, the way it's calculated, it really doesn't add up to much. 

And that's why the Department of Labor, if they found overtime violations, they're more likely to charge the contractor under the Fair Labor Standards Act because under that, they can get triple damages on the wages owed versus fairly minimal penalties under the contract, under quasi.  Now, the Copeland Anti-kickback Act came into being when it came to Congress's attention that the contractors were often making illegal deductions from workers' paychecks or even in some cases, requiring the employees to give up parts of their paychecks. 

And you may think that well, this was only happening back in the 1930s; that wouldn't happen today.  But the sad thing about it is that even last year, the Department of Labor found a contractor who was writing the employees checks that seem to match up with the payroll records, but then was requiring the employee to cash the checks and refund the employer a certain amount of money.  And this particular act falls under the criminal statutes, and as a result, the Department of Labor brought in the Department of Justice to handle the issues relating to that particular contractor.  So we do want to be sure that you look at any kind of deductions that are coming up and we'll talk a little bit more about those later. 

So what are the Department of Labor's responsibilities with regard to the Davis Bacon Act?  Well, one of their biggest responsibilities, of course, is to actually determine and set what are the prevailing wages in each locality.  And when we're talking about localities, in most cases, we're talking about the counties within each state.  In some instances where possibly a city encompasses more than one county, there may be a city rate and so it just depends on the area, but most of the time, it's the county.  And they're also going to, of course, issue the regulations and standards that the contracting agencies, Department of Labor and all of the recipients have to follow. 

They perform the oversight functions, and the Department of Labor has independent authority to conduct investigations outside of any contract space or grantee space.  They can compute any back wages and any liquidated damages and they can debar the contractor for a period of up to three years.  And we do see those come up on our notices that we get periodically from the Department of Labor of contractors who have been debarred.  And of course, you will find that out also because you must be careful not to contract with anyone who has been debarred. 

And so then the flow down of responsibilities and the Department of Energy – the Office of General Counsel has the lead on all labor standards for the Department of Energy.  And so the contracting officers, if they have questions – contracting officers, contracting specialists, and project officers – they will contact us to discuss any issues that they may have with regard to the labor standards.  Under the Recovery Act, the contracting officers have delegated some oversight to the state grantees, state recipients of grants. 

And DOE and DOL have come to an agreement on a specific clause, the recipient functions clause in the grants.  And under those, the state agencies, the state grantees act on behalf of the contracting officer.  So all the grantees and the recipients and in the case of DOE prime contractors, they must flow down the labor standards clauses into all of their subcontracts.  The grantees and the prime contractors must collect and retain the weekly certified payroll records and they need to retain those for three years after completion of the project for purposes of DOL requirements. 

There are some contract grant provisions that require that they maintain those for a little bit longer period of time and that's until after the final cost report is submitted.  The project officers monitor the grantees' performance under DBA.  DOE obviously will retain the authority to investigate, monitor and enforce the DBA requirements.  We will conduct compliance audits with the recipients of the grants.  We will investigate potential violations; or if we receive complaints, we will investigate those or enlist the recipients to enlist in investigation of those complaints; or if it is particularly egregious, we will report the contractor and the information we have obtained to the Department of Labor and ask for their assistance. 

We monitor our grantees and our prime contractors' DBA compliance and then we have to make a report semiannually to the Department of Labor regarding the dollar value of awards and contracts, the number of investigations, complaints, the results of those investigations and any back pay owed and then once it's collected, that it was collected.  And that is my job to roll that all up into a report to the Department of Labor and we'll talk a little bit more about that shortly. 

The recipient's responsibilities – and this is when the recipient is a governmental entity.  If the recipient is not a governmental entity, then the Department of Energy will collect the records except for the primary contractors.  They act on behalf of the government.  So they're going to receive the original certified payrolls and review them.  So what are we going to look at?  What are you going to look at specifically, I guess, I should say?  Well, first of all, is the correct wage determination being used?  Has the contractor paid the correct rate for the job classification stated on the payroll records?  So if the contractor puts on there that this is a ______ that match up with the wage determination, for as far as the wages. 

The next is have they paid fringe benefits appropriately?  The next thing is the certification included and signed?  And that's just another thing.  There has to be a Statement of Compliance.  Check the math.  Does everything add up?  Does everything on that payroll record look essentially kosher?  Obviously, a contractor can make things up, but that's one of the reasons why the recipient is going to need to go out and perform site visits and interview workers.  In fact, the only way that you can make sure what the contractor is saying, is putting on those payroll records is indeed what the workers in the field are telling. 

So the recipient has a lot of work to do.  So I mentioned the employee interview.  Well, you've got to first remember that you have to keep this as confidential as possible.  So you're going to interview the employee outside of the division and hearing of the employer.  You're going to talk to each employee separately, separate and apart from the other employees.  And you're going to maintain the confidentiality of the record that you produce. 

So the interview statements are going to have information on there:  name and address of the employer and the employee; the date that you interviewed; where you did the interview; what is the employee's status – full time, part time?  What kind of work do they do?  What are they classified by the employer?  Did they get paid overtime?  Do they work a lot of overtime?  Are they usually paid time and a half for that overtime?  It's all sorts of questions.  You can use Standard Form 1445 and I have copies of those forms and also, you can just go on Google and put in Standard Form 1445 and it will pop out for GSA. 

So also the responsibilities for the grantee is that they're going to go out and also do interviews for the self contractors that are performing work on that site.  And this is a little more information on this slide about the retention requirements.  And I mentioned if you look here specifically in this second bullet is that for the grants, they're required to follow the terms of the grant and it requires that they maintain all supporting documentation for three years after the submission of the final cost report. 

And the contracting officers tell me that that's usually about 90 days after the end of the grant project period.  So if your grant has been closed but you haven't – well, if it has actually been closed, you should have already done the final cost report.  So you'll have to provide, be sure and maintain those records in a safe and retrievable environment. 

All right.  We're going to talk a little bit now about wage determination.  So the CO, the contracting officer, is responsible for attaching the appropriate wage determinations at the time a contract or construction is contemplated.  However, in the case of the SDP grants and the EECBG grants – and there are probably some other grants I'm just not thinking of at this time.  The recipient, state entity, is responsible for attaching – going out and getting the most recent wage determinations at the time that the contract is contemplated. 

So then I wanted to go here, see if I can – a second here.  I wanted to – there we are – to go, and this is where you go:  www.wdol.gov and this is Wage Determinations Online.gov.  And this is where you will go to find a wage determination.  This is a very good website and we're going to talk about it a little bit later, but while we're here, I also want to point out here, they have a library.  And if you go to the library and you scroll down, you can find the All Agency Memorandum issued by the Department of Labor.  You can also find more information about the Davis Bacon Act. 

Over here on this side, we're going to talk about performances, which is when the contractor needs that classification to perform the work that is not on the wage determination, and so all that information is over here.  So this is just a really good website that provides you a lot of information.  But for the selecting of the DBA wage determination, it's fairly straightforward.  You would go for the state that you are in and I'm in District of Columbia so I would pick District of Columbia.  Well, the District of Columbia just has Washington D.C. and so then you will go to work construction type.  And we're going to go into a little more detail about this, but we'll say it's building. 

And then up top, your wage determination.  And on this wage determination, we'll talk a little bit more about this a little bit later, and I've got some more information for you on that.  So where were we here?  Sorry, lost my place.  Okay, there we are.  So the www.wdol.gov, definitely put that on your "Favorites" and save so that you can just refer back to that at any time. 

The employer obviously has a lot of responsibilities under the Davis Bacon Act.  They're going to need to post.  There's a poster the Department of Labor has that will need to be posted.  It has to be posted at the work site.  It has to be in an area where it's prominent and accessible to all employees.  There's not any particular size requirement. 

I do know for under the weatherization program, that the contractors actually just did a little poster.  They took it out and with the wage determination, some of them just stapled it all together and handed it to each of the employees because they didn't want to post something on an individual's home.  But it does need to be accessible to all employees and on there, they're going to have the Department of Energy contracting officer's name as the reference for reporting any kind of complaint. 

And the wage determination needs to be posted in the same area with the DBA poster, and the employer is responsible for determining the classification for each of the employees, and that may change during the day.  That employer may have an employee who acts as an electrician part of the time and, possibly other times, has other duties that is not actually performing electrician work.  So that employer is going to need to be very, very careful about how the employer classifies that person and pays that person and keeps meticulous records or must pay the employee at the highest rate of classification for all the hours performed. 

The contractor has a really big recordkeeping burden.  And also, I wouldn't say if you need department to DBA, this is something that they really need to keep these kinds of records under the Fair Labor Standards Act, under the Service Contract Act, but in this case, we're talking about the DBA.  They need name, address, social security number of all the employees, their work classifications, hours they've worked, the pay, deductions, what those deductions were for wages that were paid, any kind of applicable information about fringe benefits, and if there's any kind of training or apprenticeship program.  They need to make sure they have all the evidence for that. 

Okay, so under the wage determination, first, we're going to look at what is the type of construction?  Well, there are four kinds.  There's building, and there's highway, there's heavy, and there's residential.  And I mentioned the All Agency Memorandum and if you have questions about the differing classifications, the All Agency Memorandum 130 and 131 have some very good information.  Primarily, if it's a residence, it actually has to be where individuals reside and it could be apartment buildings, but it can't be more than four stories high.  Then if it's more than four stories high, it rolls into building. 

And heavy construction is a kind of a catchall.  If it's not a building and it's not residential, it's not highways, then it may fall under heavy.  It's often of things like bridge buildings and sewer projects, dredging.  All sorts of things fall under in heavy construction and sometimes it's like a solar project.  So you're going to have instances where you're going to actually have heavy construction because it doesn't fit into everything else.  So then once you've decided what kind of construction it is, then you have to decide where is it going to be?  And as I mentioned, it's usually a county, but it can be a city or in case of Hawaii, an island.  And the website will give you the information. 

So I wanted to kind of explain on the wage determination what you're all going to see.  You're going to see here, this general decision number and this is, in this case, this is Arkansas.  And this "14" means that it was in 2014, but it's 84, so it's AR84.  The most recent dates for a change to this particular wage determination is October 10 of 2014.  This one here, this 10/10/2014, it revised general decision number 2013 84, AR20130084.  And this one is building – Arkansas, building, building construction.  This went in for site county, Arkansas.  It also will tell you that it does not include single family homes or apartments up to and including four stories.  How many modifications this has had – so this is the second modification to the 2014 revision. 

Then down in the body of the wage determination, you will see here, there's a boilermaker.  Well, up above this, you will see some numbers and here, what this means is this BOIL0069 001 means that the boilermaker wage determination here is based upon a collective bargaining agreement with the Boilermaker Union Local 69 and this is their modification one to that Local 69 rate.  And here's the rates and the fringe.  The electrician here again – the electrician union and it is Local 1516.  So the wage determination is based upon a collective bargaining agreement. 

As we go down here, same with the ironworkers, same with the pipefitter.  It's based upon a collective bargaining agreement wage.  Then at the bottom of the wage determination, you will come across and then up at the top and it says SUAR2008 081.  What that means is that there was no collective bargaining agreement – I guess I would say not any, but there was no prevailing collective bargaining agreement for these classifications, and as a result, the prevailing wage is based upon a survey the Department of Labor took and those were in 2008, or the last time that they did a particular survey for this Clay County, Arkansas. 

And usually, these wages are less than the wages that are based upon the collective bargaining agreement.  But the contractor is still required to – if their work falls under one of these, they're still required to pay these minimum rates, not maximum.  So the contractor may say, "Well, I pay a whole lot more than $16 an hour for my bricklayers."  That's fine.  That's great.  But this is the minimum that they can pay.  And I guess one of the things that we do want to talk about is when they get to the missing classification, DOL requires that the agency ______ or in this case maybe the recipient state to make a determination whether there's really a missing classification or whether the same tools are used to find a classification that's existing, and if not, then the contractor must propose a rate. 

Now the contractor cannot simply try to propose the lowest rate that's on the wage determination.  So in this case, it's a laborer mason tender   brick.  That seems to be the lowest wage they could possibly pay.  That's incorrect.  They have to really look at what the individual is doing and how it compares to the wages that are on this.  Are most of the wages based on collective bargaining agreements, or are most of the wages not collective bargaining agreements?  So there's all sorts of things that you have to look under and that's where you really need to – they've got a new All Agency Memorandum out.  I believe it's 2013.  I think I have it in my notes here shortly. 

The contractor does have to go through a process when they've agreed that they need a classification that is not on the wage determination.  So what the contractor has to do is go through what DOL calls the "conformance process" to obtain that additional classification.  And the contractor will submit the Standard Form 1444 to the DOE contracting officer.  So if it's a recipient, the contractor will submit that form to the recipient.  The recipient will look at it and make sure it's filled out properly.  They will see if they agree that this classification is needed or whether possibly the classification is on there that could be used, and if not, then the recipient will submit it to the contracting officer, who also will go through that process and possibly contact me or one of my coworkers. 

We have another labor advisor here in the office, Tom O'Connor, and Tom does the loan guarantee program, loans program, and they would contact him for that information.  I provided you with the link for the SF 1444 and directions how to fill it out.  I've got one here – yes, and it is All Agency Memorandum 213.  I've got one that I did quite a while ago, but it will be filled out.  It's going to go to the Department of Labor and it's going to go to the Department of Labor from the Department of Energy contracting officer. 

So be sure and route these through the contracting officer because if it's not signed by a contracting officer, DOL is not going to look at it.  So the contractor and the recipient are going to be wondering what happened to their SF 1444 when DOL is just letting it languish.  They might send it back or they might not, but we have had issues where it just never came through, and we start checking and the recipient did not submit it to a contracting officer.  So it was not signed by a contracting officer.  So please be sure to submit it properly. 

And primarily, the contract number would be, if it's a DOE contract – normally, we would write the grantee to make sure that the grant number is somewhere on this document so that the contracting officer gets to the right grantee.  The date of the award, the date work starts.  So what's happening here in this case, they're going to install new HVAC units in this multifamily building, so it's going to be building construction.  It's in Arkansas and this is wage determination – this happens to be the Arkansas and it's back in 2010 and so it was 127 was the wage determination that they were looking at.  It's date at that time was March 19, 2010.  That was the most recent one. 

So there was no HVAC mechanic and this was for duct and system installations only.  Well, there wasn't one.  And so the contractor needed this HVAC mechanic classification.  And the closest county to Clay County that had an HVAC mechanic was Baxter County, and it actually was adjacent to Clay County.  So the contractor thought that that would be a good basis for how much to pay.  They were a rural counties.  They're adjacent to each other and DOL had already determined that this was a prevailing wage rate, good basis for wage rates and fringe.  So the contractor proposes that wage rate. 

And the prime contractor would sign here, the subcontractor would sign here, and in this case, if it's a grantee, the grantee signs where it says "prime contractor."  That's the grantee in our case.  Now down here in 16, and I want to point this out, please realize that when it says "signature of employee or representative," what that means is that if the contractor has an employee that is performing this work, does the employee agree with this wage?  Or representative of the employee, and representative is – are they represented by a union? 

Often, there is a union representing and so the contractor is proposing a classification to match their collective bargaining agreement.  And so they're going to put in the wage rate under their collective bargaining agreement, the fringe that's under their collective bargaining agreement.  They're going to attach a copy of that collective bargaining agreement to this SF 1444 and in that case, the representative – so that would be the president of the local, or the lead employee on the employer's payroll would sign.  If you don't have any of those, don't have anybody sign that because if the representative signs with the title of "president of Local 1510" or whatever and then the thing if it agrees or disagrees, that's only for its employee or the representative to sign.  Nobody else checks that's box. 

So if you don't have an employee or representative, nobody agrees or disagrees, and those are not filled out.  You'd be surprised at how many of these we've had to send back because somebody has signed in there or checked the box or put their title "owner of the company."  No, no, no.  So please be careful with that.  So this bottom part is for the DOE contracting officer.  So if you don't have an employee or representative to agree, then the contracting officer is going to check the second box because there's nobody to agree with.  So she or he, the contracting officer, will check that box and then will sign in the space, and it can be the contracting officer or the contracting officer representative.  In some cases, that's a contracting specialist.  We do have contracting officer representatives.  So the contracting officer representative could also sign.  But it has to be signed by a DOE individual, their title, and the date they submitted it to the Department of Labor. 

So we've kind of had a little whirlwind tour.  So what do we require?  What does DBA pay require?  Well, first of all, as we said, they have to be paid unconditionally not less often than once a week.  So not every other week, not twice a month, not once a month.  Once a week.  The Kickback Act as we talked about requires that the contractors pay within seven days of the end of their payroll period.  The contractor can determine what a payroll's period is.  But a payroll period is seven consecutive days.  It can be Saturday through Sunday.  It can be Monday through Sunday, whatever the contractor wants to set it at.  But once it's set, they've got to pay based on that and so they have to submit.  They have to pay their employees within seven days of the end of their payroll period and they must submit the certified payroll records to either the recipient or to the department within seven days of paying the employees. 

The Statement of Compliance is found on the wage WH 347 on the second page of that or the back of the form.  And they don't have to use that form.  That's totally a voluntary optional form to use.  It can be typed out, but it's got to have all the words that are on that.  I recommend that the contractor just make a copy of that and fill in the blanks every week and sign it unless they're going to have a certified electronic payroll.  We'll talk a little bit about that in a few minutes, but they need to have that Statement of Compliance submitted with each payroll record. 

All right, so here is the WH 347, and as I said, this is a voluntary form and the contractor may submit their payroll in any form they want as long as all the information that is on this form is on the form the contractor submits.  So for example, if they run a payroll, as long as the information is on there with regard to the employee's name and a classification and the date that they worked and the hours that they worked and deductions and the net wages, it's going to be acceptable. 

So I made this one all up here and I just filled in some things and so we're going to talk about some issues on here.  When you're looking at one of these, what am I looking for?  What am I looking to see?  All right, so first, I have Thomas Holmes.  And he has the last four – they have to have a unique identifier number.  DOL says the last four digits of the social security number; that's an example.  They don't have to use the last four digits of a social security number.  They can have an employee number, but they need to have an identifying number. 

Do not accept anything that has the employee's full social security number on it or full address or anything like that because these documents are public documents.  We give employer requests for these records all the time.  So do not accept something that has the full social security number because you want to be able to make sure that you're not releasing any personally identifiable information.  So please be very careful of that.  If you give something with the full social security number, just send it back immediately.  Don't accept it so that you're not getting that information. 

Yes, it can be redacted, but there's always the chance something gets missed.  And if you're very conscientious about being careful what you accept, it's just going to be much easier in the long run.  All right, so we did the WH 347.  So we're going to look and we've got the contractor's name and the address and this happens to be the very first payroll and that's what this means:  payroll number.  And this will be consecutive numbers depending on the week that they worked.  They do not have to submit payrolls for weeks in which they do no work.  But that is up to the recipient. 

If the recipient asks that they submit "no work" payrolls, then the contractor should do so.  And usually what they will do is they will just write across it "no work," and it will just be blank, but up in the payroll number it would say "002" or "006" or whatever one it was.  Then what is the week ending, the project and the location of the project and the project or the contract number?  And this would be the contractor's contract number.  So I have Thomas Holmes and he has a unique identifier number.  So we're all good there. 

These boxes are just for the number of tax exemptions.  This does not have to be in there.  That's not a requirement.  It could be left blank.  Then we have the work classification.  So that would be hopefully a classification that is on the wage determination.  You can't have a work classification listed on here that is not on the wage determination.  So if you're going to be calling someone a lineman and you do not have a lineman classification on the wage determination, the contractor should have submitted that SF 1444.

Now the contractor may use that classification and may pay the wages proposed until the Department of Labor comes back and says, "Yes, we accept that," and the contracting officer then modifies the grantee's grants to include that so that the grantee can then include that in the contractor's contract.  But otherwise, if they haven't submitted the SF 1444, they should not be using this classification.  So here, we've filled in.  They have a Sunday through Saturday payroll, all well and good.  We have some straight time work here.  They've worked 32 hours and the rate of pay $39.57. 

Well, then up here, it says $39.57, which is good, but that would not be correct if, say, the lineman had worked some overtime because $39.57 is the base rate and you have to pay time and a half for hours over 40 in a work week.  In this particular example here, I don't have any overtime.  But you would have to be careful to make sure if there was overtime that this box up here above the basic rate has the correct overtime rate.  So that actually should be for time and a half for Mr. Holmes.  It would be $59.36 for overtime. 

So then in this top box, that is actual DBA wages earned and the bottom box, the gross total that this employee earned.  So what we learned from this is that this employee worked for the contractor on a different job for at least a few hours because the gross is more than what the DBA gross is.  And that's fine, but if it's significantly higher and you've got 40 hours here, you may want to inquire about overtime because then it appears that the employee worked more than 40 hours in the week, yet there's nothing to indicate overtime. 

Then, of course, we have some withholdings.  That all seems to be okay.  We have an extra withholding and they've got it on here, the deduction 401k.  The employee must have paid into a 401k and then total deductions and then the net wages.  And the net wages, this amount you should be able to go to the employer's, the contractor's office, and be able to compare this rate with a check that was cut for this individual.  So this is to be what the check is for. 

So then I looked a few more down here and well, we have no identifiers for Christina Black or Maxine Walton.  And then down here, we see we have no hours.  So this Jackson McDonald had no hours.  Well, that's okay because he's the owner of the company.  And the owner is not required to put, in this case, his hours and pay on the payroll record. 

Now, here is the Statement of Compliance.  It's on the second page of the WH 347 and on this, they're going to have the date of the submission.  It says "Name of Signatory Party."  You need someone that has authority to bind the company.  So in this case, it's the president/owner of the business.  Great, can definitely bind the company.  But what that also means is that you can't have Eva Auman, payroll clerk, signing this because I can't, as a payroll clerk, I do not have authority to bind the company.  Now, if you have someone who is the payroll manager, that's usually acceptable.  And you're going to fill out the form and they're going to certify that they paid those wages in full.

And now back here, you'll notice that for William Bryant, the heavy equipment operator, it just says heavy equipment operator.  Often, there are several heavy equipment operator positions.  Did he operate the crane?  Did he operate the bulldozer?  What was it that he was operating?  So there's a little bit of an issue there.  But I wanted to point out over here that there's another deduction. 

What we have told grantees in the past is that we recommend that the first payroll record, that the contractor provides you with information for any deductions, any extra deductions, and also to provide information as to fringe benefits because if you look here, under Maxine Walton, Maxine is a truck driver and Maxine right down here – and I know it's hard for you to see – but we have two wages.  We've got $25.72 and we've got $17.30.  So $25.72 is the base wage pay and $17.13 is the fringe.  Well, what about Christina Black and William Bryant and Thomas Holmes?  They don't have any fringe. 

Okay, so we've got questions here on this.  That's why you need to have them provide information, usually, on a separate sheet of paper, again, because these particular forms is a public document.  So it's often better for the contractor to provide personal information of that client on a separate document.  They don't have to, but it's better.  As far as the fringe, that type of thing goes, it would be good if they could put it on this form. 

For instance, here, we're wondering – they talked about Maxine Walton, the truck driver.  Okay, so she's a probationary employee and she's not yet eligible for the benefit package.  Ah, so that is why she got cash versus a paid benefit because the contract here says, "Click, check Box A."  There are two boxes.  One of these two boxes needs to be checked either paid into a benefits plan or they paid in cash.  And the contractor clicks the box on which the majority of employees fall so that most of this employer's employees get a fringe benefit package. 

But in this case, Maxine is a probationary employee.  She's not yet eligible for the benefits package, so she's getting paid cash.  And that's what this exception is.  So if there's an exception to what most of the employees are getting, that needs to come under Box B here.  And that needs to be in there as to why she is getting paid in cash because the contractor can pay the fringe and the base wage all in cash.  They can pay some fringe benefits and extra in cash.  They can pay a lot of fringe and less base wage. 

So as long as everything matches up to the base plus fringe – it could be paid in a multitude of ways.  We just need to know what the employer is doing so that we can verify it's formed legally.  Then one of the things I said about personal information that you don't particularly want on a Statement of Compliance – remember, we said over here, we have this $100 "Other," well, in this case, the contractor puts it under "Remarks."  Other deductions taken for W. Bryant is child support payments. 

Well, okay, we now know that this is a legal deduction, but it might have been better for the contractor to have put that in a separate letter so that his personal information is not on this document that is available under the Freedom of Information Act.  And in this case, DOE would redact what it's for.  But again, that's going to require one of us to catch it when we're reviewing.  And then it has to be signed.  So when you're looking at this, there are going to be things immediately that you look for.  Is one of these boxes checked?  Is it signed?  Who signed it?  And then what other deductions? 

There are things on here that look odd to begin with.  There's things that – any kind of red flag – that pop out.  Now, there is the opportunity for contractors to use a certified electronic payroll system and the Department of Labor allows the use of filing of these payrolls as long as the agency has access to, and the record retention requirements are satisfied.  And they are actually extremely good programs out there.  I know some states actually set up – went through the whole process of getting these systems that some of them just developed it into existing systems that they had.  Others went out and purchased licenses to use these systems. 

And they're not a requirement, but we obviously will encourage their use.  They do provide some good checks for everybody going through the process.  The Army, Navy, and the Army Corps of Engineers now require all their contractors to use these electronic payroll systems.  So it's sort of kind of coming down the pipe, I guess, you would say.  It does save a lot of space if you're trying to collect these.  When we first bought into this process, one of the big issues that came up was the maintenance of these documents and the cost of maintaining all these paper copies for three plus years after the grant is done and it could be multitudes of projects.  So there would just be hundreds of thousands of pages of paper. 

The Department of Labor and some of the other agencies have put together some of the benefits producing electronic payroll systems.  So this is something for you to contemplate, but again, no requirement to have an electronic payroll system.  When we're looking at signatures, we have had some issues with grantees having said, "Well, can I scan in the document and then keep it that way electronically?"  And no, you cannot.  If you did it in a paper copy, it has to be maintained in that paper format. 

So please be aware that a scanned copy – DOL does not consider them to be an electronic copy.  An electronic signature is one that you have to put in a PIN number and password and those kinds of things and submit it in order to be stamped and, thus, an electronic signature because essentially what happens is you can essentially run a report.  You run a report and it will show all the people who looked at this document, who had access to it, and who signed it. 
So the contractor submits it electronically.  They have an electronic print on it.  They send it to the recipient who reviews it and they then put their print on it essentially saying they accept it and then it's maintained in that type of system.  So if it's submitted by paper, it has to save it. 

Now, here's the semiannual report.  And it's not quite as bad anymore.  When we first were doing all the grants back in 2009, I definitely was pulling my hair out.  It was just a real pain to try to get all this information put together, but we at DOE must submit reports semiannually to the Department of Labor.  And as a result, recipients are required to submit a report to the contracting officers or directly to project officers.  I think EECBG has a website now that they ask recipients to submit. 

They can also submit them to the DBA enforcement reports mailbox, which comes directly to me.  If you do send them directly to the DBA enforcement reports mailbox, please cc the contracting officer or project officer at a minimum so that they do know that you have submitted them because I'm not necessarily going to know who that individual is to let them know that, yes, you did submit it.  We have two reporting periods every year:  October 1 through March 31st and April 1st through September 30th.  I request that everybody gets them to me by the 21st of the month, April 21, October 21 each year. 

For our prime contractors and direct facility contractors, those individuals, they submit these to the local contracting human resources specialists or to the contracting officer, as I'm sure they will be instructed as to whom they're to report to.  And then those individuals will also report for their sites.  So for instance, if a site has three or four contractors, the contracting human resources specialists submits all the reports to me at one time so that I get them in a little group.  And the project officers and the CHRD specialists will essentially – I want them to review these and make sure that they look accurate before they submit them up to me. 

Now, we have several resources for your use.  Our office has a website and this is our website.  We are slowly getting things posted to it.  We have the DOE DBA Desk Guide and it has been modified once since it was initially released back in 2009 or early 2010 maybe, and we did have one minor change to it and that had to do with the prime contractors. 

We also have a DBA Frequently Asked Questions section.  I have taken questions that came in to the D.C. hotline to the EECBG, SEP programs through other webinars that we've had.  I've tried to consolidate all the questions into one set of documents and right now, that is posted up there on that website.  Any questions that come in for the webinar today, I will also post – if it's a question and answer that's not already in that DBA Frequently Asked Questions posting, I will add it so that we can make sure that all these questions get asked and people are able to find the answers. 

Also, the semiannual DBA enforcement report form is there.  Right now we're in the process of renewing our Rights forms.  We have to go through OMB and the form is good for three years.  We're now in the process of renewing it and so the draft renewal form is also posted up there.  The change on it is for the grantees that were able to – we had a page system and we're not requiring that they report in page anymore.  And then there will be a copy of – these rights will be posted up there.  For contractors, we have a list of our site leads and for our contractors human resources personnel. 

Also, there are three of us in the office and we each have certain sites that we provide primary support on and we all sort of help each other out when one of us is out.  Some other resources are the Department of Labor Wage and Hour Division website, which is the first bullet here.  The grant program grantees, they should be contacting their project officer and contracting officers and specialists for questions about their grants. 

And if you have questions, you can always send questions to me and I will also try to respond.  I would appreciate if you could tell me your project officer's name so that I cc the project officer in response that I give you so that they know what information I'm giving you.  And I guess we have completed.  So if we have questions, I'm willing to take questions. 

Deborah Lastowka: Great.  Thank you so much, Eva.  That was a lot of really great information.  So thank you for taking the time to go through all that.  We do have questions.  It looks like there's about 12 or 13 questions that were submitted.  As you know, Eva, this is not my area of expertise.  So if I ask the question and you think it would be easier to respond to that person via e mail, you can just let me know that and we can get to the next one. 

But a question that did come in a few times is "whether or not this presentation is being recorded and whether or not the presentation will be available."  As I said, there's some really great information in there and I'm sure people just want the presentation as a resource to refer back to.  So we, NREL supporting the Department of Energy, will be sending out a link to the presentation and to the recording that you guys will receive.  I also mentioned that if people want to submit their e mail address in the Questions pane, I can go ahead and even send that out to you this afternoon.  And it sounds like, Eva, you'll also be posting this as a resource.  Is that correct? 

Eva Auman: I will be posting the slides, yes.  The recording will be posted through NREL.  And we may try at some point to also get the recording posted, but we'll have to work on that. 

Deborah Lastowka: Okay.  Sounds good.  So I see a few people submitting your e mail address.  That's great.  I can get that presentation out to you shortly after we conclude today.  So I'll just walk through a few of these questions.  The first one:  "If the project is not new construction or substantial rehab, is DBA triggered?" 

Eva Auman: Yes.  I guess I would have to say it depends, but if you notice, it says, "construction alteration or repair," and Department of Labor, the threshold is $2,000.  And for grantees, the threshold – DOL interprets the grant to be the threshold.  So if you've got a grant for more than $2,000, you have already met the threshold.  So almost any project under that is going to be covered.  So you have to look and see:  Does the construction rise to the level of what we call construction? 

For example, we had a big project with the Smart Grid Investment Grants, and the utilities throughout the country, people were installing smart readers.  And these smart readers, it takes up a total of four to five minutes to actually install it.  And it's almost always a plug-in.  It's amazing.  You unplug the meter that's on the home or business and you plug in the smart meter and then you put it all back together and it takes about five minutes.  And DOL agreed with the Department of Energy that that is not construction because it's simply plug in, plug out.  It does take a screwdriver to loosen a couple of screws on a ring that holds the meter and that sort of thing.  But it's just a plug in and plug out. 

However, there are certain homes and businesses that were having these installed in which when the individuals goes out to install the smart meter, they find that they're going to have some additional work.  And the minute the additional work has to be done, any extra wiring, anything other than that plug in and plug out, that's covered DBA work.  An individual who goes out there to perform that work is classified as an electrician and will do that work.  If you're going to run any wiring through walls – any of those kinds of things is mostly likely going to be construction. 

If you feel really strongly that you think that it's not construction, definitely talk to your contracting officer or let us know and we can work through it to make a determination as to whether it's construction or not.  But really even painting, anything that's going to take a very long – more than a few minutes to do is most likely going to be construction under DBA. 

Deborah Lastowka: Great.  So moving on to the next question:  "When we are faced with a contractor that refuses to comply with Davis Bacon, what should we do?  Who should we contact?  DOE, DOL, et cetera? 

Eva Auman: Initially, you will immediately contact your contracting officer and then the contracting officer will most likely notify us, but if the contractor refuses to comply with DBA, you must withhold payment from that contractor.  That is your biggest stick; you have to make that contractor comply.  So the contractor does not get paid until that contractor complies.  So if the contractor has decided that he or she is not going to comply, they're not going to get paid.  So that's the first thing that you do, is to hold that money because whatever money we hold, will go to make sure that the employees of that contractor for the work that was performed, that they are paid the appropriate wages. 

But the biggest stick you have is to withhold wages.  So the minute you find out the contractor is not complying, stop payment and notify the contracting officer and the contracting officer will let us know.  If we have noncompliance, we're usually going to get the Department of Labor involved.  If we can't get the contractor – if the call from Department of Energy and you guys stopping payment can't get them going, usually, the threat of Department of Labor coming down and doing a full audit is enough to make them comply. 

Deborah Lastowka: Great.  The next one – and I apologize if you answered this during the presentation, you can just let us know.  "Does the Copeland Act require the contractors to submit weekly payrolls within seven days of the pay date? 

Eva Auman: Yes, it does. 

Deborah Lastowka: Okay.  Easy enough.  So the next one:  Are the field offices required to let you know when the DOL has contacted us on an issue with a subcontractor with the M&O?"

Eva Auman: Yes.  We definitely would like to know if Department of Labor is looking into any issues on any of our sites or any of our projects, we want to know about it.  We may not get involved at all, but we definitely want to know that it's occurring because if we get a call – we really don't like to get blindsided by DOL's headquarters calling us on an issue that we just totally have no idea what's going on. 

Deborah Lastowka: Great.  "Is an electric signature acceptable for payroll record?" 

Eva Auman: Yes.  If it's the electronic certified payroll, yes. 

Deborah Lastowka: Okay.  We have a few more here.  "Could you clarify which party is responsible for going to the wdol.gov website to determine the locality wage determination rates associated with the RLF program funded with their money?  Is it the contracting officer or the recipient?"

Eva Auman: Okay.  Oh, the revolving loan program.  I'm hoping that's what the person is asking.  It is the recipient.  When a loan is made from the revolving loan program funds, the recipient will then provide a wage determination to the borrower and then the borrower must make sure that all of its contractors comply and then the contractor will – usually, the borrower, at least in the couple that I've sort of dealt with, the borrower usually asks the contractor to just submit the payroll records directly to the recipients because they really don't want to have to deal with those business owners don't want to be responsible for that. 

If it's a really large business, the recipient can say, "No, you must get them first, make sure that you're getting them," and then you get them to us.  So it's up to the recipient how they want their borrowers to comply.  Now, I do want to remind everyone with the revolving loan program and with the Recovery Act, it is not applicable to individuals.  Now, individuals – I think we had a lot of questions about this early on.  So if an individual, in their individual capacity, is borrowing, not as a business owner, that individual – that work then is not subject to DBA. 

But if a business and you're loaning the money to the business so that they can do the Recovery Act type of work, energy conservation and renewable energy projects, that money is then tied to the Davis Bacon Act.  So I just want to make that little bit of clarification as a reminder to everyone. 

Deborah Lastowka: Great.  Thank you for that.  Let's see.  Just a few more here.  "So how often do job site employee interviews get performed?  Roughly, what percentage of all employees get interviewed?" 

Eva Auman: Usually, it depends on how big the project is honestly.  If the project is going to be wrapped up in a few weeks, you may only go out one time.  You may go out a couple of times.  Usually, what we have said is that after you give the first payroll record – because it's not going to do really any good to go out.  I mean, you can go out and look around and see what people are doing and that sort of thing, but to actually do the interviews, you really need to have seen the payroll records first so that you can then note what classifications are on there. 

What we say is try to interview – for instance, you're going to go out and you're going to interview roofers, interview all the roofers.  Because if there's only one roofer and you find out that – or you only interview a couple of the roofers, and the employer is going to know even though you're trying to interview them outside of the employer's ________ quietly is probably going to know.  And if that roofer says, "Well, no, I'm not" – because you're going to ask, "How much are you paid?"  And then they're going to say, "Well, I get $10 an hour," or "I get $18 an hour" or "I get whatever," and then you're going to note that on that form.  And if it's not what they're supposed to be getting or it's not what the contractor has put on the wage determination, then you know you have a problem and you're going to have to follow up with that. 

So you want to try to interview as many as employees as possible, but if there's just one or two, it's going to be more difficult because the contractor – if you then say, "Well, we have a problem with the roofers," and you've interviewed all the roofers, he may not know who blew the whistle on him.  But if you've only interviewed one or two, the contractor may just terminate those one or two so he doesn't have to deal with them anymore, and sadly, I'm here to tell you we've had this happen.  So sometimes it's just amazing that it happens all the time.  So that's why we try to get you to interview as many other people as you possibly can and interview as many classifications as you can so that you can keep things as confidential as possible. 

If there's only one or two employees and the employee may say to you – I'm trying to think how this went with – "you know, this contractor is not paying me what's on that wage determination, but I need this job really bad.  So you can't tell him I told you that."  And the problem is that unless you can get to that some other way, you have got to keep that person's information confidential and so you're going to have to try some other way to figure out to get the contractor to comply.  So if you've only got one or two and the employee doesn't want you to reveal their information, you're going to have to try to get at that contractor a different way than to reveal that employee's information.

Deborah Lastowka: Okay.  The next question we have is in regards to the semiannual report:  "On the report what is considered an investigation?" 

Eva Auman: What we consider an investigation is any time you think there might be something wrong.  So say, you get that WH 347 report that I showed you and you're looking at it and you're just like, "Well, gosh, it looks like this one employee maybe worked some overtime and it's not reported and I don't know what this other deduction is and I don't understand why" – "I need to know whether they're getting the fringe payments."  This Jackson McDonald said that he pays them a fringe package, but how do I know that it equates to the – say, this case of Maxine was getting $17.13.  So say, they were supposed to get $18.20.  How do I know that it equates up to $18.20?  He didn't tell me how he calculates it.  I have no idea.  So at that point you have information that leads you to believe that there could be a violation of Davis Bacon. 

So you're going to then make an investigation to determine whether there is, indeed, a violation.  It could be that no, once you get to talking to the contractor – oh, yeah, he does health insurance and he has this 401k and he matches and he does all these great things for his employees.  So he definitely pays all the fringe.  And the $100, so that's the court-ordered payment.  So anyhow, there's nothing wrong after you've completed this investigation and so you close it and so nothing was owed, but you did an investigation. 

So anytime that there's some reason for you to believe that an employee is owed or that the contractor may not be in compliance with DBA, that's when you're doing an investigation.  It may be that they're perfectly in compliance and that's great.  And in this case, you would say yes, I did an investigation.  Was anything owed on a form?  No.  So nothing was collected.  But I did do the investigation.  So yeah, I think everybody should take credit for when they go out into these investigations. 

I get reports all the time that they – "no, no investigations, no complaints, no, no, no."  Well, okay, but are you actually looking at anything?  Makes me wonder sometimes.  So I know one of our contractors at one of our sites – and I'll not reveal, but I always love getting theirs because at least once a year, I see an investigation on there.  There may not be anything.  There may be no violation, but at least once a year, I get to see that they did do something.  So yes, please take credit that you went out and did this work if you do. 

Deborah Lastowka: Great.  And there is another question in regards to employee interviews:  "Who is supposed to interview the employee?  DOE, the prime subcontractor, or DOL?  Is it a requirement?" 

Eva Auman: Doing an interview, yes, you need to go out and interview employees.  And if we have a DOE prime contractor, the DOE prime contractor should be going out and interviewing employees.  DOE may also go out and interview employees at the site.  If DOL comes on and starts interviewing employees, we may be wondering if they've had a complaint because they're not going to tell us.  And they're going to want to know what the DOE prime contractor has done to make sure that their contractors and their contractors' subs are doing as far as the project goes.  For the recipients, the recipients need to go and do the employee interviews, not any of their contractors. 

Now, I do know that we had some states and I don't remember which particular programs, but it was the OWIP programs, that some of the states hired some DBA consulting firms.  And they would review the payroll records and they would contact the contractor's office, sometimes by phone if something was wrong with the payroll records or they would send somebody out to do interviews.  They would do these on behalf of the state, and that was fine.  But the state is the only one who can actually take action on – if that contractor couldn't get – and these were specialized contractors.  So I'm talking about somebody like a DBA consultant, not the contractors. 

So if we looked at this and we said Jackson McDonald, he has this contract and then he subs to Eva's Electrical Shop and he can't go and interview Eva's Electrical Shop employees.  It's got to be the recipient.  So if the recipient has a specialized contractor that's going to go out and specifically perform these audits for them, then that specialized contractor can go and interview, but otherwise, it needs to be the recipient. 

Deborah Lastowka: Great.  Thank you so much for explaining that.  We have a question that's in regard to sole proprietorship:  "So if it's a sole proprietorship-type business, for example, we loaned to a single person using his LLC as a DBA.  He was just one guy putting in winter vines.  Is DBA applicable?"

Eva Auman: No, not to that one person, providing that there is evidence that that individual has incorporated.  I didn't bring this up when I was talking about the Fair Labor Standards Act.  But what you're going to need if you have a sole proprietor is that this person has a license in his business name and that he has taken some action to actually become a contractor.  What DOL has found – and DOL now has a huge campaign to ferret out these instances – but companies were calling people independent contractors.  You know, I hired Eva; she's an independent contractor, so I don't have to pay my share of her taxes and I don't have to provide her any benefits because she's an independent contractor and she's doing the work and I don't have to pay her DBA wages.  And that is not true. 

So if you're going to hire someone that's a sole proprietor, you're going to have to make sure that Eva is truly a sole proprietor and not have a contractor trying to call someone who should be an employee an independent contractor.  So if you have somebody that they're calling an independent contractor, then you're going to have to get all the information from them to prove that the individual has a license in the business's name and has actually truly taken on – done something more to become a business and not just be called an independent contractor because if they're a 1099 independent contractor, and there's none of this evidence out there, that contractor is responsible for them as though they're their employee, responsible for them no matter what. 

They can call them an independent contractor if they want to, but they're going to have to pay them the DBA wages and they're going to have to comply with all the other tax laws that come along.  So if they're a true sole proprietor, then they're like an owner of the business and they are not subject to DBA.  But just make sure you've got that extra evidence in there in case DOL comes knocking on your door. 

Deborah Lastowka: Okay.  Great.  So just one or two more here.  Thank you so much for answering all these.  I feel like you're definitely fulfilling a need here.  There's a lot of questions around this topic.  "On the semiannual report, what is the total amount in dollars that we should request from the borrower?  Is that just the amount of funds DOE has disbursed?" 

Eva Auman: Yes.  Actually, for these loans, the recipient does not need to put a dollar amount on there because DOE reported the dollars when we disburse the grants to the recipients so the grant money or the dollars has been accounted for.  So what we're interested in is we would like to know how many contracts – essentially, how many loans the recipient made over a period of time.  And that six month period, they may say they have four or five.  And then, of course, any investigations that they performed.  Did they get any complaints?  Because the one thing that – and in my directions for the semiannual report – everybody feels that if you get a complaint, there must be an investigation. 

So if you have one complaint on there, make sure you have one investigation, that you resolved it.  It could be that it turned out that the employee was not owed anything more, that there was no noncompliance.  But if you get a complaint, please make sure that you investigate it. 

Deborah Lastowka: Great.  And so the last couple here have to do with the examples that you showed.  So someone had asked, "I noticed that on your example there aren't zeros for the days not worked.  I was told that you need to have a figure in every day of the week." 

Eva Auman: Oh no, you don't.  You can leave the box blank if there was no work, no DBA.  What the contractor is reporting on the WH-347 are the hours that the employee worked on the DBA project.  So if they didn't work on the DBA project, for example, on – see if I can go back here, and there it is.  If the employee didn't work on the project on Monday or Saturday or Sunday, you do not have to have anything in those boxes.  If the contractor wants to put zeros in there, that's fine.  But it's just fine to leave them blank because all they're reporting is the work that the employee did on this project. 

Deborah Lastowka: Okay.  Another question on WH-347:  "What are justified deductions under the Other category aside from child support?" 

Eva Auman: Well, any court-ordered deduction and – hold on here.  There's a whole list in the regulations.  Seems like their share of health premiums, any payments to a 401k plan – I'm trying to think about what all those – oh, here we go, fringe.  I know that's fringe.  Let me think.  There are some odd ones such as you can – if they pay into the United Way, those kinds of deductions; if the contractor requires uniforms, contractor needs to pay for the uniforms.  They can't deduct the uniforms.  So that would not be a valid deduction. 

But if the contractors, they provide the service to have those uniforms cleaned and that's a voluntary thing by the employee, then cost of cleaning can be deducted.  Tools, not a valid deduction.  Let's see if I can – I'm not finding my page with my list of deductions.  But I can get that citation for you and give you the list that's in the regulations.  Contractors can, with the approval of the Department of Labor, do other deductions. 

And I know this sounds very strange, but under the grants program, we actually had a couple of instances, one in which an employee had such terrible credit, he could not purchase a vehicle.  And so the contractor actually purchased the vehicle for the individual or took out the loan in the contractor's name and then deducted the payments for the vehicle each month from the employee.  And that's fine if you get approval in advance by the Department of Labor and this contractor submitted the information, and DOL gave him permission to go ahead and do that because it was for the benefit of that employee.  And that's the main thing.  Are these payments to the benefit of the employee, not the benefit of the employer? 

We had another one where the contractor had hired this individual who had some disabilities and actually purchased a mobile home and put it on a piece of property of the contractor's so that this individual could have his home, and he would then deduct the cost of the mobile home payment.  Again, we made him go to Department of Labor, but Department of Labor approved it.  So there are very generous individuals out there.  Not everybody is out to take advantage of an employee, but there are some bad apples, of course, and the idea is that it needs to be a benefit for the employee. 

And so some of these things like for instance, the United Way, the employees signs a document that says, "Please deduct $50 every payday or $10 every payday to go toward the United Way."  Also if they have a loan from a credit union and they want you to deduct the payments, but it has to be a credit union.  Now, I think if you went to the Department of Labor and say, "I have this loan for the bank and they want it deducted from their payroll and the payments to go directly to the bank," they may approve that. 

But again, that would be something that would have to go to the Department of Labor and get advance approval for.  But I will get my list and we'll list out what they have in the regulations and where the citation is.  I'm just not seeing it right now. 

Deborah Lastowka: Great.  Well, unfortunately, we've come to the end of our time.  Eva, thank you so much for providing all this information today and going through all these questions.  We did have a couple more that came in.  So if you don't mind, maybe I'll send those your way and you can just respond to those individuals directly. 

Eva Auman: Please do.  And I will respond directly to the requester and I will also then post them up on – I will send them to you so you can post them with the presentation materials, the answers. 

Deborah Lastowka: Sounds great.  That would be great.  So thank you again for your time.  Thank you for everyone else for tuning in today, and like I said, I will be sending out the slides.  To everyone who submitted their address, it was a large number, so I'll probably just end up sending it to everyone who registered and then we'll also get that posted on the website as well.  So thanks again for your time.  Have a great afternoon.  Thanks to you, Eva, and everyone, enjoy the rest of your day. 

Eva Auman: Okay, thank you, all.

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