15h Interpretations: Application of CWHSSA to Types of Work and Contracts

The DBA does not provide for compensation of covered employees at premium rates for overtime hours of work. The scope of CWHSSA is set out in section 103 of the act. The safety standards provisions are administered by OSHA. Except as otherwise provided, the act applies the maximum hours standards of 40 hours per week to any contract which may require or involve the employment of laborers or mechanics upon a public work of the U.S., any territory, or DC, and to any other contract which may require or involve the employment of laborers or mechanics if such contract is one:

• to which the U.S. or any agency or instrumentality thereof, or any territory, or DC is a party; or
• which is made for or on behalf of the U.S., any agency or instrumentality thereof, any territory, or DC; or
• which is a contract for work financed in whole or in part by loans or grants from, or loans insured or guaranteed by, the U.S. or any agency or instrumentality thereof, under any statute of the U.S. providing wage standards for such work. See FOH 15i00(1).

Guards and watchmen and many other classes of service employees are laborers or mechanics within the meaning of CWHSSA. See 29 CFR 4.181(b).

15g01 Method of procurement of contracts not controlling.

The CWHSSA is applicable to contracts regardless of the method of procurement. It is immaterial whether contracts are entered into through invitations for bids or by negotiation.

15g02 Failure to include CWHSSA stipulations in contract.

The failure to incorporate the CWHSSA stipulations, as set forth in 29 CFR 5.5(b) and 48 CFR 22.305, into a contract does not preclude CWHSSA coverage.

15g03 Site of work.

The CWHSSA has no site of work limitation as does the DBA. For example, if an employee performs part of the contract work under a construction contract at the job site and then continues contract work at a shop or other facility located at a remote distance, all the hours at both locations, including travel time between them (see FOH 15k03(e)), would be considered subject to CWHSSA. Different wage rates, however, might be paid as the DBA prevailing wage requirements would apply only to activities performed on the site of the work.

15g04 Statute of limitations.

The Portal-to-Portal Act does not apply to the CWHSSA. Employee suits authorized by section 104(b) of the CWHSSA may be subject to some other statute of limitations such as the Miller Act. However, contracting agencies may withhold and transfer funds to the comptroller general in order to pay unpaid workers without regard to any statute of limitations.

15h INTERPRETATIONS: APPLICATION OF CWHSSA TO TYPES OF WORK AND CONTRACTS

15h00 Concessionaire contracts.

• Post exchanges are considered agencies of the U.S. for purposes of the CWHSSA. The fact that individuals are supplying the funds in payment for services rendered does not preclude coverage. Thus, contracts between Post Exchanges and various concessionaires such as barber shops, photographic studios, snack bars, shops repairing shoes, radios, watches, TV sets and appliances, car washing racks, operators of officer clubs, and laundry and dry cleaning services, would be subject to CWHSSA.
• Where the amount of a contract other than a construction contract exceeds $100,000, the CWHSSA applies even though the percentage paid the government has the effect of reducing the net amount retained by the contractor to a figure of less than $100,000 (e.g., where the contractor pays a post exchange a percentage of the amount collected for cleaning etc., rather than receiving payment from the government). See FOH 15i00(7).
• The application of the CWHSSA to concessionaire contracts extends to contracts under which services are provided to the public generally, and is not limited to those contracts under which services are provided to the government or its civilian or military personnel. For example, all laborers or mechanics employed by concessionaires in national park, forests, and the National Wildlife Refuge System, are covered by CWHSSA.

15h01 Contracts with states and political subdivisions.

In some cases, a state or political subdivision will obtain a government contract and undertake to perform it with state or municipal employees. The CWHSSA does not contain an exemption for contracts performed by state or municipal employees. Thus, the CWHSSA will apply to non-construction contracts with states or political subdivisions in the same manner as it applies to contracts with private employers, in the absence of administrative action under section 105 of the act varying such application. See FOH 15b06 for the application of CWHSSA to force account construction work (i.e., work performed in-house with federal funds by employees of a government agency or a state or political subdivision thereof).

15h02 Food services.

Contracts to provide food services to employees in federal government buildings and installations, or the employees of firms which are managing government facilities, are subject to CWHSSA. Cooks, waitresses, buspersons, and related jobs are considered laborers or mechanics covered by the CWHSSA.

15h03 Hotels, motels, and restaurants: contracts for lodging and meals.

Contracts with hotels, motels, and restaurants for the furnishing of lodging and meals are generally subject to the CWHSSA. Employees such as maids, porters, cooks, dishwashers, waiters, and counterworkers would generally be considered laborers or mechanics covered by CWHSSA.

15h04 Janitorial service contracts.

Janitors and window cleaners performing work on a federal government contract for services are subject to the CWHSSA.

15h05 Laundry and dry cleaning contracts: linen supply contracts.

The CWHSSA applies to laborers or mechanics performing laundry and dry cleaning service contracts or linen supply contracts.

15h06 Maintenance work done under service contracts with HUD.

Maintenance employees as well as other workers engaged in manual services for local housing authorities pursuant to service contracts with HUD are subject to CWHSSA. Contracts with the Federal Housing Administration (FHA) for work on houses owned by the FHA (e.g. , houses repossessed by FHA for failure of the borrower to meet payments), such as for mowing of yards, repair, and maintenance work, are also subject to CWHSSA.

15h07 Moving and storage.

Contracts which call for packing, crating, drayage, loading, and storage of household goods and personal effects of military and civilian personnel arriving and departing from military installations are subject to the CWHSSA. The primary purpose of such contracts is not considered to be for transportation within the meaning of the CWHSSA exemption. See 15i00(2).

15h08 Repair and servicing of vehicles.

Contracts for the repair and servicing of vehicles are generally subject to the CWHSSA and are not exempt under the open market exemption. See FOH 15i00(4).

15h09 Shipbuilding, alteration, repair, and maintenance.

Except where PCA is applicable, CWHSSA will apply to the building, alteration, repair, and maintenance of ships under government contracts. See FOH 13b11, FOH 14c06, FOH 15d11, and section 7 of Regulations & Interpretations, Number 3.

15h10 Sorting and handling of mail.

Postal Service contracts for the handling of mail may be subject to CWHSSA if they involve the separation and storage of mail, as well as its transportation, according to specifications set forth in the contract. The principal question to be determined is whether the contract in question is a contract for transportation within the meaning of section 103(b) of the CWHSSA. If the contract is essentially for sorting and storage of mail with transportation being incidental thereto, there would be coverage under CWHSSA. See FOH 15i01(c).

15h11 Vending machine concession agreements.

The open market exemption under section 103(b) of the CWHSSA does not include vending agreements. Laborers or mechanics employed under such contracts are subject to CWHSSA unless PCA covers such work.