UDOT Civil Rights Technical Guide for Contractors by TLCS

UDOT Civil Rights Technical Guide for Contractors

UTAH DEPARTMENT OF TRANSPORTATION

Revised Jan. 2017

Civil Rights Technical

Utah Department of Transportation

Guide for Contractors Table of Contents SECTION I

INTRODUCTION

Overview of Civil Rights Mission and Program.................................................................... 3

Overview of Federal Laws Prohibiting Discrimination......................................................... 4

Overview of Contractors Responsibilities............................................................................ 9

SECTION II CONTRACT REQUIREMENTS

Sixteen EEO and Affirmative Action Requirements........................................................... 12

Wage and Labor Requirements ........................................................................................ 27

Additional Contract Requirements ................................................................................... 53

Limited English Proficiency (LEP) Requirements............................................................... 55

Training Special Provision Requirements .......................................................................... 57

FHWA Annual EEO Reporting Requirements (Form PR 1391) .......................................... 61

SECTION III

PROJECT-SPECIFIC CIVIL RIGHTS DOCUMENTATION REQUIREMENTS

SECTION IV

PREPARING FOR A COMPLIANCE REVIEW

CONTRACTOR TECHNICAL GUIDE REFERENCE DOCUMENTS Exhibit A............................................................ EEO Laws, Executive Orders, Regulations & Policies Exhibit B...................................................................................................................... EEO Acronyms Exhibit C. ..................................................................................................................... Bid Conditions Exhibit D. ........ Federal Register Notices Regarding Participation Goals for Minorities and Females Exhibit E................................................................................................... On-The-Job Training Forms Exhibit F................................................................. PDBS Screen Shots detailing PR-1391 Data Entry Exhibit G.......................... C-137 Civil Rights Documentation Requirements on Federal-Aid Projects Exhibit H..................................................................................................... EEO Policy Requirements Exhibit I...........................................................................Project-Specific EEO Complaint Procedures

Civil Rights Technical

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SECTION I INTRODUCTION

Overview of: Civil Rights Mission & Program Federal Laws Prohibiting Discrimination Contractor Responsibilities

I N T R O D U C T I O N

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Civil Rights Technical SECTION I INTRODUCTION

This Civil Rights Technical Guide for Contractors is designed to help contractors and subcontractors working on UDOT Federal Aid projects, comply with the Federal laws and regulations that prohibit contractors from discriminating in employment, and require that they undertake affirmative action to ensure equal employment opportunity in their workforces. It is intended for contractors who have construction contracts and/or subcontracts. The contents of this guide have been designed to help Contractors and subcontractors:

• Understand their contractual obligation to comply with the laws administered by FHWA and UDOT with reference to Civil Rights, Labor Compliance, Title VI, and the DBE Program on highway construction projects. • Understand the role of the UDOT Civil Rights Office in enforcing and monitoring Labor Compliance, DBE, Title VI, Federal Equal Employment Opportunity, and Affirmative Action laws that apply to Federal contractors and subcontractors. • Implement the affirmative action steps that are described in the FHWA 1273, 23 CFR, Title VI, and the DBE Program • Prepare for a UDOT compliance review This Civil Rights Technical Guide for Contractors does not create new legal requirements or change any current legal requirements. Instead, it reflects the views of UDOT and is intended to serve as a basic resource document on FHWA and UDOT-administered policies, laws, and regulations. Every effort has been made to insure that the information contained in the Manual is accurate and contains the most current information available.

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A. OVERVIEW OF CIVIL RIGHTS MISSION AND PROGRAM The UDOT Civil Rights Office administers and monitors the equal employment opportunity laws that apply to contractors, subcontractors, and consultants working on UDOT Federal-aid highway construction projects. UDOT Civil Rights monitors compliance with these laws primarily through compliance reviews, during which a Compliance Specialist examines the contractor’s affirmative action efforts and employment practices. The UDOT Civil Rights Office also investigates complaints filed by individuals alleging discrimination on the basis of race, color, sex, religion, national origin, or disability. The Civil Rights Office encourages voluntary compliance and provides technical assistance regarding the requirements of the equal employment opportunity laws that apply to all Contractors and subcontractors. The Civil Rights Office coordinates with the Federal Highway Administration (FHWA), Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP), the Utah Anti-Discrimination Division (UADD), and the Equal Employment Opportunity Commission (EECO). The UDOT Civil Rights Office carries out its responsibilities by: • Offering technical assistance (such as this guide) to contractors/subcontractors to help them understand regulatory requirements and the compliance review process • Conducting compliance review and complaint investigations of contractors’ and subcontractors’ personnel policies and practices • Coordinating between contractors/subcontractors and the Department of Labor’s employment and training programs, outside organizations, and recruitment sources to help employers identify and recruit qualified employees • Negotiating agreements with contractors and subcontractors found in violation of regulatory requirements • Monitoring contractors’ and subcontractors’ progress in fulfilling the terms of their employment goals, provision requirements, and training goals through periodic compliance reports • Recommending enforcement actions to the OFCCP or other applicable agencies when necessary.

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Civil Rights Technical B. OVERVIEW OF FEDERAL LAWS PROHIBITING DISCRIMINATION The UDOT Civil Rights Office’s programs and policies are based on laws that have been enacted by the Federal government beginning with the Civil Rights Act of 1964. A brief summary of applicable laws, executive orders, regulations and policies can be found at the following link: __Exhibit A___. A list of commonly used Acronyms is also available at the following link: _____Exhibit B__. The specific requirements of some of these laws are as follows: Federal Equal Employment Opportunity (EEO) Laws • Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin. • The Equal Pay Act of 1963 (EPA) protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. • The Age of Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older. • Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. • Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities who work under any program or activity that receives or benefits from Federal financial assistance. • The Civil Rights Act of 1991 provides monetary damages in cases of intentional employment discrimination. The Equal Employment Opportunity Commission (EEOC) enforces all of these laws. The EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. The UDOT Civil Rights Office, together with the FHWA and the OFCCP, coordinate to ensure compliance with the law. Discriminatory Practices Under Title VII, ADA, and ADEA, it is illegal to discriminate in any aspect of employment, including: • Hiring and firing • Compensation, assignment, or classification of employees • Transfer, promotion, layoff, or recall • Job advertisements • Recruitment • Testing • Use of company facilities • Training and apprenticeship programs • Fringe benefits • Pay, retirement plans, and disability leave

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• Other terms and conditions of employment Discriminatory practices under these laws also include: • Harassment on the basis of race, color, religion, sex, national, origin, disability, or age. • Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices. • Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities. • Denying employment opportunities to a person because of marriage to, or association with an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools, or places of worship, associated with a particular racial, ethnic, or religious group. • Employers are required to post notices to all employees advising them of their rights under the laws the EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading. Other Discriminatory practices are specifically defined by the following laws: Title VII Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex. National Origin Discrimination • It is illegal to discriminate against an individual because of birth place, ancestry, culture, or linguistic characteristics common to a specific ethnic group. • A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule in necessary, employees must be informed when English is required and the consequences for violating the rule.

I N T R O D U C T I O N

• An employer is required to reasonably accommodate the religions belief of an employee, or prospective employee, unless doing so would impose an undue hardship. Sex Discrimination Title VII’s broad prohibitions against sex discrimination specifically cover: • Sexual Harassment: This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender. (The “hostile environment” standard also applies to harassment on the basis of race, color, national origin, religion, age, and disability.) • Pregnancy-based Discrimination: Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

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Civil Rights Technical Age Discrimination in Employment Act (ADEA) The ADEA’s broad ban against age discrimination also specifically prohibits: • Statements or specification in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ) • Discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs • Denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. Equal Pay Act (EPA) The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions. Note that: • Employers may not reduce wages of either sex to equalize pay between men and women. • A violation of the EPA may occur where a different wage was, or is, paid to a person who worked in the same job before, or after, an employee of the opposite sex. • A violation may also occur where a labor union causes the employer to violate the law. Title I of the Americans with Disabilities Act (ADA) The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination: ADA Definitions: An individual with a disability under the ADA is a person who has a physical or mental impairment

Individual with a Disability that substantially limits one or more major life activities, has a record of such an impairment, or is

regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.

Qualified Individual with a A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desire, and who, with or Disability without reasonable accommodation, can perform the essential functions of that position.

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Utah Department of Transportation

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for Contractors ADA Definitions (cont’d):

Reasonable Accommodation

Reasonable accommodation may include, but is not limited to , making existing facilities used by employees readily accessible and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassigning to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examination, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’s size, financial resources, and the nature and structure of its operation.

Prohibited Inquiries and Examinations

Before extending an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Drug and Alcohol Use

Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA, when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performances as other employees.

I N T R O D U C T I O N

The Civil Rights Act of 1991 The Civil Rights Act of 1991 made major changes in the Federal laws against employment discrimination enforced by the EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorized compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys’ fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.

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Civil Rights Technical Title VI of the Civil Rights Act of 1964 Title VI prohibits exclusion from participation in, denial of benefits, and discrimination under federally-assisted programs on the grounds of race, color, or national origin. Federal Assistance includes: • Money • Provision of valuable services • Training • Commodities • Use or interest in land Title VI applies to programs or activities that receive Federal financial assistance. The term is defined by statute to mean all of the operations of: • A department, agency, special purpose district, or other instrumentality of a state or local government receiving assistance. • The entity of a state or local government that distributes assistance and each department and agency (and each state and local government entity) to which assistance is extended. • A college, university, or other post-secondary institution or public system of higher education receiving assistance. • A local education agency, as defined by statute, receiving assistance • An entire corporation, partnership, or private organization, if: o Assistance is extended to such corporation, etc. as a whole, or o That which is principally engaged in the business of education, health care, housing, social services, or parks and recreation.

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C. OVERVIEW OF CONTRACTORS RESPONSIBILITIES Covered Federal and Federally-assisted Contractors and subcontractors must comply with 23 CFR and FHWA 1273. In addition, Federal and Federally-assisted contractors and subcontractors must also comply with Executive Order (EO) 11246. The Office of Federal Contract Compliance Programs (OFCCP) administers Executive Order 11246. To comply with EO 11246, contractors must demonstrate good-faith efforts to meet their affirmative action goals for the employment of minorities and women in the construction industry. The goals by geographic area are determined by the Deputy Assistant Secretary of the OFCCP, and are issued pursuant to 41 CFR 60-4.6. A “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” is to be included in the bid specifications for all Federal and Federally-assisted construction contracts and subcontracts in excess of $10,000. The Notice sets forth the goals for minority and female participation. The goals are expressed as a percentage for the hours worked by the contractor’s aggregate workforce in each trade on all construction work performed in the geographic area, regardless of whether the work is Federal, Federally-assisted or non-Federal. Covered Contractors performing construction work in geographical areas where they do not have a Federal or Federally-assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals in the second area also are applicable to both Federally-involved and non-Federal-involved construction work. (See the example in 2 below.) 1. Goals for Women: The current goal for the utilization of women is 6.9% of work hours and applies to all of a contractor’s construction sites regardless of where the Federal or Federally-assisted contract is being performed. This goal was originally published in the Federal Register of April 7, 1978, 43 FR 14899, 14900, as Appendix A. Pursuant to a Notice published in the Federal Register of December 30, 1980, 45 FR 85750, 85751, the 6.9% goal was extended indefinitely. A typed transcript of this Federal Register Notice is available at the following link: ____Exhibit D____. 2. Minority Group Goals: Current goals for the utilization of minorities were published in the Federal Register of October 3, 1980, 45 FR 65979, 65984, as Appendix B-80. A typed transcript of this Federal Register Notice appears is available at the following Link: ___Exhibit D___. Minority goals are formulated in terms of work hours performed in a specific Standard Metropolitan Statistical Area (SMSA) or Economic Area (EA). For example, ABC Company has a Federal contract for construction in SMSA X. The goals for SMSA X apply to all of ABC’s construction work in SMSA X, both the Federally-involved and the non-Federally-involved construction work. In addition, if ABC Company performs construction work in SMSA Y, it would apply the SMSA Y goals to all its construction work in SMSA Y, whether or not it had a Federal or Federally-assisted contract in SMSA Y. Although SMSAs were realigned into Metropolitan Statistical Areas (MSAs) as a result of the 1980 census, construction goals continue to be based on SMSAs.

I N T R O D U C T I O N

These goals are not a subterfuge for quotas. Quotas are expressly forbidden by law. Affirmative action goals under Executive Order 11246 are targets for recruitment and outreach and should be reasonably attainable by means of applying good-faith efforts. The standard of compliance is good faith. Numerical goals do not create guarantees for specific groups, nor are they designed to achieve proportional representation or equal results. The regulations enumerate the good-faith steps covered Contractors must take in order to increase the utilization of minorities and women in the skilled trades. Sixteen requirements are discussed in the Standard Federal Equal Employment Opportunity Construction Contract Specification (Executive Order 11246). Contractors must document the steps and actions that they take to ensure that these requirements are met. The specifications are included in covered Federal or Federally-assisted construction contracts and subcontracts. The specifications are deemed incorporated in all covered contracts by op-

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Civil Rights Technical eration of the Executive Order regardless of whether they are incorporated in the solicitation or contract and regardless of whether the contract is written. Covered Contractors may have additional responsibilities, such as the following: • Notifying OFCCP about any construction subcontract awards in excess of $10,000 that are made under covered Federal or Federally-assisted construction contracts. • Complying with personnel record retention requirements. • Completing and submitting an annual EEO report, Standard Form 100 (also known as the “EEO-1 Report”), if the Contractor, or subcontractor, has 50 or more employees and a covered contract, or subcontract, of $50,000 or more.

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SECTION II CONTRACT REQUIREMENTS

16 EEO/Affirmative Action Requirements Wage and Labor Requirements Limited English Proficiency Requirements Training Special Provisions EEO Reporting

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Civil Rights Technical SECTION II CONTRACT REQUIREMENTS

A. SIXTEEN EEO AND AFFIRMATIVE ACTION REQUIREMENTS The Standard Federal Equal Employment Opportunity Construction Contract Specifications (EO 11246) require Federally-involved Contractors with a construction contract in excess of $10,000 to take affirmative action steps that are at least as extensive as the sixteen affirmative action steps listed in the Specifications.

The sixteen steps are summarized on the following pages. Actions that covered Contractors are required to take to comply with the steps are included. Examples of suggested or alternative actions that would enable a contractor to comply with these specifications are also listed. The examples listed should not be viewed as being the only possible ways to comply with these specifications. It should also be noted that, depending on the situation, a contractor may need to take more than one action to comply with the particular specification, as well as take actions that are not specifically listed on the following pages.

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for Contractors EEO and Affirmative Action Specification #1

Contractors and subcontractors must maintain a work environment free of harassment, intimidation, and coercion at all sites and in all facilities at which the contractor’s employees are assigned. Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.a.)

Where possible, contractors will assign two or more women to each construction project. Contractors must also take specific steps to ensure that all foremen, superintendents, and other on-site supervisory personnel are aware of and carry out the company’s contractual obligation to maintain a working environment free of harassment, intimidation and coercion, with specific attention to minorities and women working at all work sites and facilities.

Examples of actions that demonstrate compliance: Contractors may produce and distribute copies of policy statements prohibiting harassment to all employees. EEO policy statements must be posted at all construction job sites and may be posted at other facilities of the contractor as well. Contractors may give supervisory personnel, and other employees, memoranda and other written instructions addressing the need to maintain a work environment free of harassment, intimidation, and coercion. Copies of such written materials should be retained. Contractors may hold meetings to inform supervisory personnel of their duty to carry out the contractor’s obligation to maintain a workplace free of harassment, intimidation, or coercion. Minutes or other records of such meetings should be retained. Contractors that assign more than one woman to each construction project should retain records of such assignments. Contractors may develop formal procedures to handle complaints of harassment and maintain records of such complaints and how the company handled them. Contractors’ EEO Officers may prepare and retain reports, diaries, analyses, etc., of specific efforts made to monitor the work environment for the presence of any forms of harassment, intimidation, or coercion, such as: verbal, visual, or written abuse; physical aggressiveness; assigning women and/or minorities to more difficult or dangerous work than men/non-minorities; or sabotaging of individuals’ work. Contractors may provide harassment awareness training to supervisors and employees. Contractors should retain records of such training which indicate the dates of the training, the names of those conducting the training, the names of those attending the training, and a copy or description of the training materials.

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Civil Rights Technical EEO and Affirmative Action Specification #2 Contractors and subcontractors must establish and maintain current lists of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the contractor or its unions have employment opportunities available, and maintain a record of the organization’s responses.

Special Provisions, Specific Equal Employment Opportunity Responsibilities, Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.b.)

Examples of actions that demonstrate compliance: Recruitment sources should include the state employment offices serving the recruitment areas for the company’s construction projects, and may also include organizations such as the Job Corps, YWCA, National Organization of Women, National Association of Women in Construction, EEO Programs, and others. In addition, local community organizations are extremely effective as employer/employee linkage resources. Contractors may maintain files of letters to minority and female recruitment sources announcing employment opportunities and application procedures. In order to maintain a record of recruitment organizations’ responses, contractors may retain any written responses received from the sources, or log or otherwise record the responses. An applicant flow log may be used by contractors to identify employment solicitations and referrals, and to track the results of the applications. Applicant flow documentation should include copies of correspondence from recruitment sources, copies of job announcements from state employment offices, and copies of notes, diaries, phone logs, and/or other written records of contacts with recruitment organizations.

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for Contractors EEO and Affirmative Action Specification #3

Contractors and subcontractors must maintain current files containing the names, addresses, and telephone numbers of each minority or female off-the-street applicant, and minority or female referral from a union, recruitment source or community organization and of what action was taken with respect to each individual. Occasionally, contractors/subcontractors will send individuals to the union hiring hall for referral back to the contractor. If the union did not refer the individual to the contractor, or if the individual was referred but was not hired, the contractor/subcontractor must keep a record of all actions taken, along with the reason why the referral or hiring did not occur.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.c.)

Examples of actions that demonstrate compliance: Contractors should establish files that show the names, addresses, telephone numbers, and trades of each minority and female applicant and referral. In addition to an applicant flow log, contractors may wish to note on the actual employment application forms what action was taken with respect to each applicant and the reason for non-hire. Where an applicant has been referred to the union for referral back to the contractor, contractors should document this action and its results or any follow-up contacts made with the applicant or the union.

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Civil Rights Technical EEO and Affirmative Action Specification #4 Contractors and subcontractors must immediately notify the Deputy Assistant Secretary in writing when the union or unions with which the contractor/subcontractor has a collective bargaining agreement has not referred a woman or minority individual sent by the contractor/subcontractor. Similarly, contractors/subcontractors must notify OFCCP when the contractor/ subcontractor has other information that the union referral process has impeded the contractor’s efforts to meet its EEO and affirmative action obligations.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.d.)

Examples of actions that demonstrate compliance: Contractors should keep copies of all letters to and from the unions, minutes of meetings, etc., related to any claims that the union has impeded the company’s efforts to comply with its EEO obligations. Contractors should also keep copies of any letters sent to the OFCCP that contain claims of non-referral or claims that a union has impeded the contractor’s efforts to comply with EEO obligations.

Note: Neither the provision of a collective bargaining agreement, nor the failure by a union with whom the contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor’s obligations under the contract specifications, Executive Order 11246, as amended, or the applicable regulations. See Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and 41 CFR 60-4.3(a)5

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for Contractors EEO and Affirmative Action Specification #5

Contractors and subcontractors must develop on-the-job training opportunities or participate in training programs for the job area(s) which expressly include minorities and women. Contractors’ actions must include upgrading programs, apprenticeships, and trainee programs relevant to the contractor’s employment needs, especially those programs approved by the Department of Labor. Contractors and subcontractors must provide notice of these training opportunities and job programs to recruitment sources, state employment offices, and other referral sources that the contractor/subcontractor has compiled under Specification 2.

C O N T R A C T

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.e.)

Examples of actions that demonstrate compliance:

Contractors may maintain records of employees’ participation in training programs, including those that are approved or funded by the Department of Labor’s Bureau of Apprenticeship and Training.

Contractors may document any contributions of cash, equipment, or personnel provided in support of training or apprenticeship programs.

Contractors may inform minority and female recruitment sources and schools of these programs in writing. Contractors should retain copies of any such letters.

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Civil Rights Technical EEO and Affirmative Action Specification #6 Contractors and subcontractors must disseminate EEO policies by: •

Providing notice of the policies to union and training programs and requesting their cooperation and assistance in meeting EEO obligations.

•

Including EEO policy statements in all policy manuals and collective bargaining agreements.

•

Publicizing these policies in company newsletters, the annual report, etc.

•

Specifically reviewing the policy with all management personnel and with all minority and female employees at least once a year.

•

Posting the EEO Policy on bulletin boards accessible to all employees at each location where construction work is performed.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.f.)

Examples of actions that demonstrate compliance: In addition to including EEO policies in all policy manuals, contractors may include EEO policies in employee handbooks provided to each employee when they are hired (if such a handbook exists). Copies of contractors’ EEO policies should be posted on bulletin boards that are accessible to all employees at each location where construction work is performed. Contractors should document discussions that it has with women and minority employees about EEO policies. For example, employees may be asked to sign a receipt for an employee handbook that contains EEO policies. Employees can be asked to sign a form at a new employee orientation indicating that the company’s EEO policies have been reviewed with them. Contractors may also keep copies of letters, memoranda, and notices to unions and training programs notifying them of the contractor’s EEO policies and requirements and requesting their assistance in meeting those obligations. Contractors can keep a file containing company newsletters and annual reports which contain descriptions of EEO policies.

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for Contractors EEO and Affirmative Action Specification #7

Before the start of work and then not less often than once every six months, contractors and subcontractors must review EEO policies and affirmative action obligations (under these specifications) with all employees having any responsibility for hiring, assigning, layoff, termination, or other employment decisions. These EEO policies and affirmative action obligations must be specifically reviewed with on-site supervisory personnel such as superintendents, general foremen, etc., prior to starting construction work at any job site. Contractor/subcontractor personnel must maintain records that identify the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.g.)

Examples of actions that demonstrate compliance: Contractors should have written records (memoranda, diaries, minutes of meetings, etc.) that identify the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.

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Civil Rights Technical EEO and Affirmative Action Specification #8 Contractors and subcontractors must disseminate EEO policies externally by including them in any advertising in the news media (including minority and female news media). Contractors and subcontractors must also provide written notification to and discuss EEO policies with other contractors and subcontractors with whom the contractor/subcontractor does or anticipates doing business.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.h.)

Examples of actions that demonstrate compliance: Contractors should have copies of any employment advertisements or job announcements which specifically include the EEO “tagline.” The tagline may state that the contractor is “an equal opportunity employer,” or it may alternately state that all qualified applicants will receive consideration for employment without regard to race, color, religion, gender, or national origin. The tagline should appear in advertisements placed in media targeted toward minority and female readership. Contractors should maintain copies of correspondence with subcontractors that notify them of EEO contractual obligations and the contractor’s commitment to compliance. Contractors should document meetings with construction industry associations and organizations where the Federal EEO and affirmative action contract obligations and methods for facilitating compliance have been discussed or acted upon

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for Contractors EEO and Affirmative Action Specification #9

Contractors and subcontractors must direct recruitment efforts, both oral and written, to minority, female, and community organizations; to schools with minority and female students; and to minority and female recruitment and training organizations serving the contractorâ&#x20AC;&#x2122;s recruitment area and employment needs. Contractors/subcontractors must send notice to its recruitment sources for women and minorities announcing acceptance of applications for apprenticeship or other training. This notice must be sent no later than one month before publication of apprenticeship and training announcements.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.i.)

Examples of actions that demonstrate compliance: Contractors should have written records of contacts (such as written communications, telephone calls, or personal meetings) with minority and female community organizations, recruitment sources, schools, and training organizations. Records should specify the date of contact, individual contacted, results of the contact, and any follow-up efforts. Contractors should also document their contacts with local offices of the state employment service, referral programs, or other community based organizations. If a union is responsible for acceptance into the training programs, contractors should ensure that information is obtained from the union on individuals who were referred from the recruitment sources/organizations that were accepted in the program. Contractors should maintain records of written contacts to recruitment sources announcing training and apprenticeship opportunities. Recruitment sources must be notified one month before the company begins accepting applications. Contractors should also document their contacts with local offices of the state employment service, referral programs, or other community based organizations. If a union is responsible for acceptance into the training programs, contractors should ensure that information is obtained from the union on individuals who were referred from the recruitment sources/organizations that were accepted in the program. Contractors should maintain records of written contacts to recruitment sources announcing training and apprenticeship opportunities. Recruitment sources must be notified one month before the company begins accepting applications.

C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical EEO and Affirmative Action Specification #10 Contractors and subcontractors must encourage current minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both at the work site and in other areas of the contractorâ&#x20AC;&#x2122;s work force.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.j.)

Examples of actions that demonstrate compliance: Contractors may have copies of diaries, telephone logs, or memos indicating contacts (both written and oral) with minority and female employees requesting their assistance in recruiting other minorities and women, and records of the results. Contractors should specifically discuss recommendations for referral with minority and female trade employees. Supervisors and crew leaders may keep a log of worker referrals from minority or female employees or recruitment sources. Contractors that provide after-school, summer, and vacation employment to minority and female youth should maintain records of such employment. Contractors may also retain on file any letters and other documentation of contact with recruitment sources or local state employment agencies regarding these youth employment programs.

PAGE | 22

Utah Department of Transportation

Guide

for Contractors EEO and Affirmative Action Specification #11

Contractors and subcontractors must validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3, the “Uniform Guidelines on Employment Procedure (1978). Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.k.)

Actions for demonstrating compliance vary by the number of people employed by the contractor. 41 CFR 60-3.15A(1)

Examples of actions that demonstrate compliance: Contractors with 100 or fewer employees should collect data to help determine if a test, or selection requirement, has a possible adverse impact on any race, sex, or ethnic group (see 41 CFR 60-3.15A(1). These contractors should maintain and have available records for each year showing:

•

The number of persons hired, promoted, and terminated in each trade (e.g. carpenter, brick masons, concrete finishers, ironworkers, mechanic, equipment operators) by gender, and where appropriate, by race and national origin.

•

The number of applicants for hire and promotion by trade, gender, and where appropriate, by race and national origin.

•

The selection procedures used (such as standardized testing or unstructured interviews and qualifications review) for each trade.

Contractors with more than 100 employees should maintain the records listed above and maintain records for each job that show whether the total selection process for each job has an adverse impact on either gender, or on any of the following race and ethnic groups: Blacks, American Indians, Asians, Hispanics, and whites other than Hispanics. Contractors should perform adverse impact analyses at least once a year for each group that comprises at least two percent of the labor force in the relevant area, or two percent of the applicable workforce. Where a total selection process does adversely impact any of the above referenced groups, contractors should maintain and have available records showing which components of the selection process have an adverse impact. Records regarding individual components of the selection process should be collected for at least two years after the adverse impact has been eliminated. Contractors must validate selection procedures that have an adverse impact, in accordance with the Uniform Guidelines. Supervisors and crew leaders may keep a log of worker referrals from minority or female employees or recruitment sources.

C O N T R A C T R E Q U I R E M E N T S

Contractors that provide after-school, summer, and vacation employment to minority and female youth should maintain records of such employment. Contractors may also retain on file any letters and other documentation of contact with recruitment sources or local state employment agencies regarding these youth employment programs. Note: This specfication is a Federal Requirement. If applicable, please contact the OFCCP for assistance.

PAGE | 23

Civil Rights Technical EEO and Affirmative Action Specification #12 At least once a year, contractors and subcontractors must inventory and evaluate all minority and female personnel for promotional opportunities. Contractors must also encourage these employees to seek or prepare for, through appropriate training, etc., promotional opportunities. Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11 FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.l.)

Examples of actions that demonstrate compliance: Contractors may keep written records (memoranda, letters, personnel files, etc.) showing promotional opportunities for women and minorities are reviewed annually. Contractors may keep written records documenting that the participation of women and minorities in promotional opportunities is encouraged.

EEO and Affirmative Action Specification #13 Contractors and subcontractors must ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect, continually monitoring all personnel and employment related activities to ensure that EEO policies and contractorsâ&#x20AC;&#x2122; obligations under the contract specifications are being carried out. Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.m.)

Examples of actions that demonstrate compliance: Contractors may use data collected under Specification #11 to determine if seniority practices, job classifications, work assignments, or other personnel practices have an adverse impact on women and minorities. Contractors may wish to audit or examine existing personnel practices periodically or to convene an EEO task force when developing new personnel practices to ensure that EEO obligations are being adequately addressed and incorporated. Contractors must ensure that current policies are reviewed on a regular basis to identify factors that are not equally applied.

PAGE | 24

Utah Department of Transportation

Guide

for Contractors EEO and Affirmative Action Specification #14

Contractors and subcontractors must ensure that all facilities and company activities are non-segregated except that separate or single-user toilets and necessary changing facilities designed to assure privacy between the sexes shall be provided. Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.n.)

Examples of actions that demonstrate compliance: Contractors should offer adequate toilet and changing facilities to all employees to guarantee privacy between the sexes. Contractors may compile documents (i.e. flyers, posters, announcements) indicating that the information concerning parties, picnics, and other company sponsored events has been disseminated equally to all employees.

EEO and Affirmative Action Specification #15 Contractors and subcontractors must document and maintain records of all solicitations of offers for subcontracts from minority and female Contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.o.)

Examples of actions that demonstrate compliance: Contractors should keep letters or other direct solicitations for subcontracts from minority or female contractors, with a record of the specific responses and any follow-up activities done to obtain price quotations.

C O N T R A C T R E Q U I R E M E N T S

Contractors may have a list of subcontracts they have awarded to minority or female contractors or suppliers, showing the dollar amounts involved. Contractors should retain copies of solicitations sent to minority and womenâ&#x20AC;&#x2122;s contractor associations, or other business associations, and state or local government agencies.

PAGE | 25

Civil Rights Technical EEO and Affirmative Action Specification #16 At least once a year, contractors and subcontractors must conduct a review of all supervisors’ adherence to and performance under the company’s EEO policies and affirmative action obligations. Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.3(a)7.p.)

Examples of actions that demonstrate compliance: Contractors may keep copies of performance review, memoranda, letters, reports, and minutes of meetings or interviews with supervisors and management personnel about their employment practices as they relate to EEO policy and affirmative action obligations. Contractors should also compile any written evidence that supervisors and managers have been notified when their employment practices adversely or positively affected the company’s EEO and affirmative action posture.

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Utah Department of Transportation

Guide

for Contractors

B. WAGE AND LABOR REQUIREMENTS FHWA 1273 – IV. Davis-Bacon and Related Act Provisions This section is applicable to all Federal-Aid construction projects exceeding $2,000, and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size). The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal-Aid highway. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. Contracting agencies may elect to apply these requirements to other projects. The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract Provisions and Related Matters” with minor revisions to conform to the FHWA-1273 format and FHWA program requirements: 1) Minimum Wages

All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3) the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment, computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics.

Contractor Requirements: The Davis-Bacon Act mandates that wages paid to laborers and mechanics must not be less than the hourly rates, including fringe benefits, in the wage determination in the contract. Laborers and mechanics must be:

Davis-Bacon Act

W A G E

•

Paid weekly.

•

Properly classified for the work actually performed.

•

Paid according to the classification.

L A B O R R E Q U I R E M E N T S

PAGE | 27

Civil Rights Technical Contractor Requirements (cont’d): The following compliance requirements were established by the Copeland Anti-Kickback Act: Full wages earned must be paid. Deductions from wages must be authorized:

Copeland “Anti-Kickback Act” (29 CFR Subtitle A Part 3)

False Information Act

•

Legal deductions are: FICA, Federal Withholding Tax, State Withholding Tax and Medicare.

•

Other deductions must be acknowledged in writing by employee.

•

The signed acknowledgement must accompany the first payroll in which the deduction occurs. UTAH STATE LAW REQUIRES the signed acknowledgement to be similar to the following: “I authorize my employer to deduct [amount of dollars] from my weekly payroll check for the following:”

•

The contractor, and all subcontractors, must submit weekly statements of compliance with all project certified payrolls.

The False Information Act made the use of false statements a felony under Title XVIII, Section 1001, of the United States Code.

The Fair Labor Standards Act established compensable working time definitions:

Fair Labor Standards Act (FLSA)

•

“Hours worked” is defined as all time during which an employee is required to be on duty.

•

Overtime is to be paid for a workweek in excess of 40 hours at a rate not less than one and one-half the regular rate.

•

Regular rate and exemptions to overtime are also defined.

The Fair Labor Standards Act and other Wage and Hour Information is available on the on-line Regulatory Library of the Wage and Hour Division of the United States Department of Labor. www.dol.gov/whd

PAGE | 28

Utah Department of Transportation

Guide

for Contractors FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d)

1) Minimum Wages

a. (cont’d) Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section I(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1d of this section [Section IV]; also regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period.

Contractor Requirements:

Fringe benefits must be paid to a “bona fide” trust fund, to the employee, or to a combination of the two If fringe benefits are paid to a bona fide fund:

Fringe Benefits

•

The employee must be able to have access to that fund

•

The Contractor must provide written information to employee regarding fund

•

Fringe benefit monies must be deposited into the fund at least quarterly

If fringe benefits are paid directly to the employee, the payroll must easily identify the payment.

W A G E

L A B O R R E Q U I R E M E N T S

PAGE | 29

Civil Rights Technical FHWA 1273 – IV. David-Bacon and Related Act Provisions (cont’d) 1) Minimum Wages a. (cont’d) Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4).

Prevailing Wage Rate Information:

Davis-Bacon Wage Rate Application

Wage Rate for Each Classification

The Davis-Bacon Act requires specific Federal wage rates to be paid on all contracts in excess of $2,000. The classification of the work performed determines the rate of pay. There are some Federal-aid projects (local roads or rural minor collectors) that do not require Davis-Bacon wages. They still require all other EEO documents and requirements for Federal-aid projects. Total Wage Rate = Base rate + Fringe rate Total Overtime Wage Rate = (Base x 1.5) + Fringe rate

Each County has its own general decision number. General decision numbers begin with UT02 (UT = Utah, 02 = year of update) and end with 2 zeroes and a 2 digit number assigned to each area. Rates do not change until a new wage survey is conducted by the U.S. Department of Labor. Except when:

The State of Utah has

•

Union classifications prevail.

29 Separate County Decisions

•

Union labor agreements change wages.

Above each classification (or group of classifications), an alphanumeric “identifier” and date provide information about the source of classification(s) and wage rate(s): •

PAGE | 30

i.e. SUUT3003A: SU = non-union (survey), UT = Utah, 3003 = sequential number used by the WDGS (Wage Determination Generation System), A = character used internally in processing wage determination

Utah Department of Transportation

Guide

for Contractors Prevailing Wage Rate Information (cont’d): Identifiers beginning with characters other than SU indicate classification(s) and wage rates determined from union agreements:

The State of Utah has 29 Separate County Decisions (cont’d)

•

i.e. TEAM0222A: TEAM = Teamsters Union, 0222 = local number, acter used internally in processing wage determination.

A = char-

•

The date shown is the effective date of most current negotiated rate entered into the WDGS. (Wage rates that have been modified are marked with an “*” (asterisk).

The PDBS Certified Payroll System generates a unique Contractor Code for each wage classification on a decision. This code is the identifying number that appears in the drop down menu on the Contractor Payroll screen in PDBS.

W A G E & L A B O R R E Q U I R E M E N T S

PAGE | 31

Civil Rights Technical FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d.) 1) Minimum Wages a. (cont’d) Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed.

Contractor Requirements: An accurate record of time spent in each classification must be kept and itemized on the payroll. If time cannot be segregated accurately, the classification with the highest rate for work performed must be paid for all hours worked by the employee for that day. Entries into UDOT’s PDBS Certified Payroll System must also accurately correlate with the classification of work performed by the employee and all hours and deductions reported should reconcile with the employee’s pay check.

FHWA 1273 – IV. David-Bacon and Related Act Provisions (cont’d) 1) Minimum Wage a. (cont’d) The wage determination (including any additional classifications and wage rates conformed under paragraph 1b of this section [Section IV] and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

Contractor Requirements:

Davis-Bacon Act

PAGE | 32

The wage determination and any additional classifications added through the 1444 process, and the minimum wage poster must be posted at project site.

Utah Department of Transportation

Guide

for Contractors FHWA 1273 â&#x20AC;&#x201C; IV. Davis-Bacon and Related Act Provisions (contâ&#x20AC;&#x2122;d)

1) Minimum Wages b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract, shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: i) The work to be performed by the additional classification requested is not performed by a classification in the wage determination; and ii) The additional classification is utilized in the area by the construction industry; and

W A G E

iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

L A B O R

(3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. The Wage and Hour Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b(2) or 1.b(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

R E Q U I R E M E N T S

PAGE | 33

Civil Rights Technical Contractor Requirements: If, after award of contract, the contractor determines a new classification is necessary, the information to generate form GSA SF 1444, must be entered into UDOT’s PDBS Certified Payroll System. The form must then be printed, signed and forwarded to the UDOT Civil Rights Office for processing. While the request is being processed, the contractor must pay the wage rate requested on the form. A Civil Rights Office Compliance Specialist will review and forward the 1444 request to the U.S. Department of Labor for approval, as outlined in FHWA 1273. If the USDOL does not agree with the proposed rate, they will suggest a new rate. The contractor is then required to make up the difference to employees. New approved classifications are “contract specific” and can only be used on the contract for which the request was originally made.

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Utah Department of Transportation

Guide

for Contractors FHWA 1273 â&#x20AC;&#x201C; IV. Davis-Bacon and Related Act Provisions (contâ&#x20AC;&#x2122;d)

1) Minimum Wages c) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. d) If the contractor does not make payments to a trustee or other third person, the contractor may consider as a part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided that the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

W A G E &

Contractor Requirements: Utah wage rate decisions do not include fringe benefits which are not expressed in an hourly rate. Such plans are generally considered unfunded plans. If proposed plans of this type do not meet regulatory requirements, the contractor may be required to establish an escrow account where deposits are made weekly, or not less often than quarterly, for the value of the appropriate sick leave, vacation, or other benefit contributions. If a contractor does receive plan approval, and an employee terminates prior to becoming eligible under the plan, then the employee must be paid those amounts from the escrow account upon termination.

Note: Please contact the Civil Rights Office for additional information before setting up this type of plan.

L A B O R R E Q U I R E M E N T S

PAGE | 35

Civil Rights Technical FHWA 1273 â&#x20AC;&#x201C; IV. Davis-Bacon and Related Act Provisions (contâ&#x20AC;&#x2122;d) 2) Withholding The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold, or cause to be withheld, from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing wage requirements which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor, or any subcontractor, the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

Note: UDOT has the authority to withhold funds from the contractor, as may be determined necessary, to pay employees of the contractor the full amount of wages required by the contract. Funds will be held by UDOT until evidence of restitution has been provided. These provisions also apply to wage underpayment by a subcontractor, however, in this case funds are withheld from progress payments to the prime contractor.

PAGE | 36

Utah Department of Transportation

Guide

for Contractors FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d)

3) Payrolls and Basic Records

a) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof of the types described in Section 1(b)(2)(B)of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made; and actual wages paid.

Contractor Requirements:

The Prime Contractor, and each subcontractor, will enter a weekly payroll in UDOT’s PDBS Certified Payroll System within seven days following the end of the pay period. Delay in submitting payrolls will result in an automatic posting of a $50.00 disincentive per payroll to the PDBS Project Accounting System, in accordance with the Special Requirements Attachment regarding Certified Payrolls in UDOT’s Notice to Contractors included in all contract documents. Submittal may be accomplished using one of two available options:

•

Option 1: The Contractor creates and continues to use the company’s existing payroll software program to import the weekly certified payroll into the UDOT PDBS Certified Payroll System. The software program format utilized by the contractor must be certified by UDOT prior to the first import submittal.

•

Option 2: The contractor can access and utilize the Contractor Module in PDBS to enter employee data and certified payroll information into the system.

Certified payroll information and statements of compliance entered into the PDBS Certified Payroll System by either option must be accurate and complete. The time reported should accurately correlate to the classification of work performed by each employee and all hours and deductions reported should be easily reconciled with the individual employee paychecks. Internal payroll records supporting the documentation entered into the Certified Payroll System must be retained by the contractor and available for audit for three years after final completion of the contract.

Note:

W A G E

Detailed training on the use of UDOT’s PDBS Certified Payroll System is available from the Ciil Rights Resource Center on the Utah Department of Transportation’s website at the following link:

L A B O R R E Q U I R E M E N T S

http://www.udot.utah.gov/main/f?p=100:pg:0:::1:T,V:1740,

PAGE | 37

Civil Rights Technical FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d) 3) Payrolls and Basic Records

a) (cont’d) Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

USDOL FIELD OPERATIONS HANDBOOK – FOH 15f10 (C,D) The USDOL Field Operations Handbook provides the following information regarding fringe benefits: C.

Fringe benefits must be “bona fide.” There is no difficulty in determining whether a particular fringe benefit is “bona fide” in the ordinary case where the benefits are those common to the construction industry and which are paid directly to the employees in cash or into a fund, plan, or program. An example of the latter would be the types of benefits listed in the Act itself which are funded under a trust or insurance program. Contractors may take credit for contributions made under such conventional plans without requesting the approval of DOL under Reg. 5.5(a)91)(iv)

Where a particular fringe benefit or benefit plan is not of the conventional type described in the preceding paragraph ( c) it will be necessary for the U.S. Department of Labor National Office (NO) to examine the facts and circumstances involved to determine whether the fringe benefit or the plan is “bona fide” in accordance with the requirements of the Act

PAGE | 38

Utah Department of Transportation

Guide

for Contractors Contractor Requirements: When a contractor elects to pay some, or all of an employeeâ&#x20AC;&#x2122;s fringe benefits into a fund, plan or program, (instead of cash) the program must be bona fide, or common to the construction industry. These types of benefits are listed in the Davis-Bacon Act and are recognizable as conventional funds because they are funded under a trust or insurance program.

Fringe Benefits Other than Cash:

Written information describing the plan and the benefits, costs and vesting, must be provided to employees. The contractor must make contributions to the plan on a regular basis (i.e. not less often than quarterly) and detailed records of all plan transactions must be kept. If a contractorâ&#x20AC;&#x2122;s fringe benefit program is not of the conventional type, it must be approved by

(When a contractor marks the U.S. Department of Labor National Office. Box(a) on the statement of Whether a contractorâ&#x20AC;&#x2122;s plan is conventional, or unique (and consequently approved by the DOL), compliance) a copy of the plan or program, and the written information provided to the employees, must be

made available to the UDOT Civil Rights Office upon request from a UDOT Compliance Specialist. Plan records and financial transactions must also be available for audit upon request. If a contractor has previously submitted a copy of their plan or program to the UDOT Civil Rights Office and has since made significant changes to the plan, a new copy containing the changes should be submitted to the Civil Rights Office for their records.

W A G E & L A B O R R E Q U I R E M E N T S

PAGE | 39

Civil Rights Technical FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d) 3) Payrolls and Basic Records b) (1) The contractor shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at www.dol.gov/esa/shd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.

PAGE | 40

Utah Department of Transportation

Guide

for Contractors Contractor Requirements: In accordance with the Special Requirements Attachment regarding Certified Payrolls in UDOT’s Notice to Contractors included in all contract documents, the following information must be entered into the PDBS certified payroll system for each employee appearing on a certified payroll: •

Social Security Number. Note: After the initial entry, only the last four digits of this number can be seen by others using the system.

•

Full name

Employee Information

•

Gender

(entered into the PDBS Certified Payroll System)

•

Race

•

Hire Date

•

Classification as an Apprentice, or Journeyman, and Craft

•

For an Apprentice, the Sponsoring Agency, required hours, OATELS registration date, period of apprenticeship, and the current apprenticeship certification date are also required.

W A G E &

Once an employee has been entered into the system, their name is available for use during the certified payroll entry process.

Contractors who elect electronic import of their company’s existing payroll into the UDOT PDBS Certified Payroll System (Option 1) should contact UDOT for certification of their import format prior to their first import submittal.

Payroll Set Up

Contractors who elect to manually enter their company payrolls into the UDOTA PDBS Certified Payroll System (Option 2) should be aware of the following guidelines:

(in the PDBS Certified Payroll System)

All certified payrolls must be entered by project. Be sure to select the correct project for your payroll entry from the drop down menu. New payrolls should be set up for entry into the system consecutively in date order. The option to insert a payroll at a later date, or to modify the original date or number on a payroll is not available. Consequently, careful attention to the correct setup of the individual payrolls to be entered is required.

L A B O R R E Q U I R E M E N T S

PAGE | 41

Civil Rights Technical Contractor Requirements cont’d: The following information is required for each employee who appears on a PDBS Certified Payroll: •

The Contractor Code(s) and Group Classification(s) that correspond to the wage decision for the project. Note: The code and classification selected from the drop-down menu must accurately represent the work performed by the employee.

•

The hours worked itemized by day and separated into straight time and overtime.

•

The regular hourly rate of pay that was paid to the employee and the overtime hourly rate where applicable.

•

The hourly fringe rate, entered as either funds paid into a bona-fide plan, or cash paid to the employee or a combination of both.

Payroll Entry

•

The gross amount paid to the employee for work on the project.

(in the PDBS Certified

•

Other amounts paid to the employee including work on other projects and any other payments. The sum of these amounts, along with the total wages for the project, should accurately reflect the total value of the employee’s pay for the week, so that an audit of the employee’s check would easily reconcile with the numbers entered into the certified payroll system.

•

Deductions for Federal taxes, State taxes, FICA, Medicare, and other deductions.

•

The check number.

•

The system will calculate the Total Net Earned, which should reconcile with the check which was issued to the employee.

Payroll System)

The Certified Payroll System will automatically indicate whether the amount paid to an employee was in accordance with the wage decision classifications reported. If an error occurs, an entry explaining why there was an error, and what course of action will be taken to correct it, will be required to complete the payroll.

PAGE | 42

Utah Department of Transportation

Guide

for Contractors Contractor Requirements cont’d: The following guidelines apply to Contractor Codes(s) sand Group Classification(s) used to determine hourly rates of pay on a project:

Davis-Bacon Classifications on Payrolls

•

They must be in accordance with the wage determination found in the UDOT contract.

•

The classification chosen for an employee must accurately reflect the work which is performed.

•

When an employee works in more than one classification, an accurate record of time spent in each classification must be kept and itemized on a time record. If time cannot be segregated accurately, then the classification with the highest rate for work performed must be paid for all hours worked by the employee for that day.

•

Entries into UDOT’s PDBS Certified Payroll System must also accurately correlate with the classification(s) of work performed by the employee. Individual line item entries are required when time is spent on multiple classifications. All hours reported should reconcile with the employee’s time record.

W A G E & L A B O R R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements (cont’d): The following guidelines apply to the payment of overtime: •

Overtime must be paid for all hours worked in excess of 40 hours a week.

•

Overtime is paid at one and one-half times the basic wage rate.

•

The basic wage rate does not include payments for fringe benefits.

Overtime and Fringe Benefits: •

Overtime

Fringe Benefits are paid at the same rate for all hours worked regardless of whether they are regular time, or overtime. (ie. There is no premium rate for fringe benefits associated with overtime hours.)

Overtime Options for Employees who work in Multiple Classifications: •

Overtime can be assigned to the classification associated with the last hours worked during the week. (ie. Overtime would be paid for any hours worked over 40 in the last classification where time was spent – typically on a Friday.)

•

A Weighted Average can be used to apply overtime proportionately according to the percentage of regular time worked in each classification.

•

In either case, employees must be informed how overtime will be paid prior to going to work.

•

Applying overtime at the convenience of the employer (i.e. for example to the classification with the lowest rate of pay or to the classification typically worked by an employee) is not an option.

The following guidelines apply to the payment of fringe benefits:

Fringe Benefits

PAGE | 44

•

The fringe benefits that must be paid are itemized in the contract wage determination.

•

They apply to all hours worked and are paid at the same rate for both straight and overtime hours.

Fringe Benefits are reported on the Statement of Compliance as follows (check the appropriate box): •

Box(a): if fringe benefits are paid to approved plans, funds, or programs.

•

Box(b): if fringe benefits are paid in cash.

•

If there is a combination of fringe benefit payments, check both buttons and enter an explanation under the Exceptions screen.

Utah Department of Transportation

Guide

for Contractors Contractor Requirements cont’d: Deductions are defined as any money deducted from wages earned by an employee. They should not be confused with fringe benefits. Deductions from wages must be authorized: •

The only legal deductions are: FICA, Federal Withholding Tax, State Withholding Tax and Medicare.

•

Other deductions must be acknowledged in writing by the employee.

•

UTAH STATE LAW REQUIRES the signed acknowledgement to be similar to the following: “I authorize my employer to deduct [amount of dollars] from my weekly payroll check for the following:

•

A copy of the signed acknowledgement must be forwarded to the Resident Engineer when the first payroll showing the deduction is entered into the Certified Payroll System.

Deductions

Payroll adjustments are entered into the Certified Payroll System to document that restitution has been made for underpayment of wages. The following guidelines apply to payroll adjustments: •

The restitution documentation should be entered as an adjustment associated with the original payroll by checking the adjustment box and entering the week ending date associated with the adjustment.

•

The Resident Engineer may request copies of both sides of a canceled adjustment check as additional proof of payment.

•

Willful failure to pay wages due, including fringe benefits, can result in fines, debarment, and possible criminal action.

Payroll Adjustments

Supplemental Payrolls

Supplemental payrolls are used to enter new information when an employee(s) has been inadvertently omitted from the information already submitted for a certified payroll.

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Civil Rights Technical FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d) 3) Payrolls and Basic Records b) (2) Each payroll submitted shall be accompanied by a Statement of Compliance, signed by the contractor or subcontractor, or his or her agent, who pays or supervises the payment of the persons employed under the contract and shall certify the following: i) That the payroll for the payroll period contains the information required to be provided under 5.5(a)(3) (ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under 5.5(a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in the Regulations, 29 CFR part 3; iii) That each laborer or mechanic has been paid not less than the applicable wage rate and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH347 shall satisfy the requirement for submission of the Statement of Compliance required by paragraph 3b(2) of this section [Section IV]. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of Title 18 and section 231 of Title 31 of the United States Code.

Contractor Requirements: A Statement of Compliance must be entered in PDBS for each certified payroll. Entry of the Statement of Compliance information into the PDBS system is:

Statement of Compliance (WH-348)

PAGE | 46

•

A verification that the all of the information entered into the PDBS Certified Payroll System is correct and complete.

•

A verification that the wage rates which were paid are not less than those required by contract wage determinations.

•

A certification that the work classifications indicated for each laborer, or mechanic, accurately represent the work which was performed.

•

An acknowledgement that the facts represented on the Statement of Compliance (Form WH-348) are true.

Utah Department of Transportation

Guide

for Contractors FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d)

3) Payrolls and Basic Records c) The contractor or subcontractor shall make the records required under paragraph 3a of this section [Section IV] available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA, may, after written notice to the contractor, the contracting agency or the State DOT, take such actions as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

Note:It is against Federal regulations for UDOT employees, or UDOT consultant representatives, regardless of their position with the State, to disclose anyinformation acquired during an interview of a contractor’s employee to anyone other than those involved in processing this confidential material, without the prior consent of that employee. (29 CFR Part 5.6(a); USCA Title V, 552a)

W A G E & L A B O R R E Q U I R E M E N T S

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Civil Rights Technical FHWA 1273 – IV. Davis-Bacon and Related Provisions (cont’d) 4) Apprenticeships and Trainees a) (cont’d) The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate listed in the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job sites in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor or subcontractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the contractor’s or subcontractor’s registered program shall be observed.

Contractor Requirements: After apprenticeship or trainee begins working on project: •

Contractors must comply with the OATELS prescribed Journeyman-to-Apprentice ratio.

•

Compliance can be determined by running the project Journeyman-to-Apprentice Ratio Report from the PDBS Certified Payroll System. The Contractor should review this report regularly to ensure compliance.

•

If the number of Apprentices exceeds the prescribed ratio, the additional apprentices must be paid as journeymen.

Detailed information on the UDOT Training Special Provision can be found in Part E of this Section II of this document.

PAGE | 48

Utah Department of Transportation

Guide

for Contractors FHWA 1273 – IV. Davis-Bacon and Related Act Provisions cont’d)

4) Apprenticeships and Trainees a) (cont’d) Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator for the Wage and Hour Division determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in the accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. b) Trainees (Programs of the USDOL) Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeyman on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for his/her level of progress, expressed as a percentage of the journeyman-level hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for work actually performed.

W A G E & L A B O R R E Q U I R E M E N T S

PAGE | 49

Civil Rights Technical FHWA 1273 – IV. Davis-Bacon and Related Act Provisions (cont’d) b) (cont’d) In the event the Employment and Training Administration withdraws approval of a training program, the contractor or subcontractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

Contractor Requirements: The contract Special Provision, Specific Equal Employment Opportunity Responsibilities, Training Special Provisions defines how trainees are to be paid: •

Apprentices or trainees on Federal-Aid projects may not be paid less than 60% of journeyman rate for classification being trained.

For an Apprentice / trainee to qualify for payment less that the full wage as defined by the specifications, the following conditions must exist: •

The contractor must have submitted the required documentation showing registration and level of apprenticeship / trainee to the project office prior to commencement of the work.

•

The contractor must be in compliance with the required ratio of journeymen to trainees for the project.

Employees classified, on payrolls, as apprentices or trainees, who are not registered must be paid the full rates shown in wage determination for the classification of work actually performed. If an active apprenticeship program is no longer approved, the UDOT Civil Rights Office should be contacted immediately.

PAGE | 50

Utah Department of Transportation

Guide

for Contractors FHWA 1273 â&#x20AC;&#x201C; V. Contract Work Hours and Safety Standards Act

1) Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 2) Violation; Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wage. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 3) Withholding for Unpaid Wages and Liquidated Damages: The FHWA or the contracting agency shall upon its own action or upon written request of any authorized representative of the Department of Labor withhold, or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 4) Subcontracts: The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower their subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraph 1 through 4 of this section.

W A G E & L A B O R R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements: The following guidelines apply to compliance with the Contract Work Hours and Safety Standards Act of 1962:

Contract Work Hours

•

A standard work week is defined as 40 hours.

•

Overtime is one and one-half times basic hourly rate of pay for all hours over 40 in a work week, exclusive of fringe benefit payments.

•

The “Basic Rate” is defined as the straight time hourly rate actually being paid. When computing overtime, the basic rate shall not be confined to the contract minimum rate.

•

The prime contractor is liable for withholdings for any unpaid wages and liquidated damages in the sum of $10 per day for each calendar day an employee was required or permitted to work in excess of the standard workweek of forty hours without payment of overtime.

•

The prime contractor is liable for the unpaid wages and damages of his subcontractors

•

Intentional violations are a federal offense. The penalty is a $1,000 fine and/or six months in prison.

and Safety Standards Act of 1962 (CWHSSA)

PAGE | 52

Utah Department of Transportation

Guide

for Contractors

C. ADDITIONAL CONTRACT REQUIREMENTS Additional Requirements – Notification of Award The contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier that is made under covered Federal or federally-assisted construction contracts.

Special Provisions, Specific Equal Employment Opportunity Responsibilities; Sheets 1-11, FHWA 1273, May 1, 2012, and (41 CFR 60-4.2(3))

Contractor Requirements: Contractors may fulfill this requirement by notifying the nearest OFCCP. Written notification must include: •

The name, address, and telephone number of the subcontractor;

•

The contractor’s employer identification number;

•

The estimated dollar amount of subcontract;

•

The estimated starting and completion dates of the subcontract; and

•

The geographical area in which the subcontract is to be performed.

A D D I T I O N A L C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Additional Requirements – Recordkeeping The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA. Special Provisions, Required Contract Provisions Federal-Aid Construction Contracts, FHWA 1273, Section II Nondiscrimination, Paragraph 11 Records and Reports, May 1, 2012, and (41 CFR 60-4.3)

Contractor Requirements: The records kept by the contractor shall document the following: •

The number and work hours of minority and non-minority group members and women employed in each work classification on the project;

•

The progress and efforts being made in cooperation with unions to increase employment opportunities for minorities and women; and

•

The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women.

The contractor will also submit an annual report to the contracting agency each July for the duration of the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. Specific instructions on how to enter this information into the UDOT PDBS Certified Payroll system can be found in Section F of this document. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. Specific instructions regarding this reporting can be found in Part E of Section II of this document.

PAGE | 54

Utah Department of Transportation

Guide

for Contractors

D. LIMITED ENGLISH PROFICIENCY (LEP) REQUIREMENTS Limited English Proficiency (LEP) Executive Order 13166 requires Federal agencies and their recipients to examine their services and develop and implement processes by which LEP persons can meaningfully access those services. A LEP Person is someone who does not speak American English as a primary language and has limited ability to read, speak, write or understand English, and so cannot fully and equally participate in or benefit from federally funded programs and activities for which they are otherwise eligible. The Department of Labor and the Department of Transportation have provided guidance to recipients in their efforts to take “reasonable steps to ensure ‘meaningful’ access (to LEP individuals) to the information and services they provide.” The nondiscrimination authority for this program is grounded in the principles and rights defined in Title VI. DOT LEP Guidance, Federal Register Vol. 70, No. 239,Wednesday, December 14, 2005, Page 74087, Executive Order 13166, Title VI

Congress defined the scope of a program, or activity covered by Title VI, in the Civil Rights Restoration Act of 1987 (CRRA). The CRRA states that, in most cases, when a recipient receives Federal financial assistance for a particular program or activity, all operations of the recipient are covered by Title VI, not just the part of the program that uses the Federal assistance. Recipients may include: any state or local agency, private institution or organization, or any public, or private individual to who Federal assistance is extended. Civil Rights Restoration Act of 1987

Contractor Requirements: As a recipient of Federal financial assistance, these guidelines apply to UDOT and also to the local governments, contractors and subcontractors who benefit directly, or indirectly from federal funding. The key to providing meaningful access for LEP persons is to ensure that a recipient (LEP person) can communicate effectively. The following guidelines apply to contractors and their LEP employees, subcontractors and suppliers: •

Contractors must take reasonable steps to ensure ‘meaningful’ access to the information and services they provide.

•

Contractors must ensure that the LEP person is given adequate information, understands the purpose of the programs and/or activities available, and is not prevented by language barriers from deriving the benefits of such programs and/ or activities.

A D D I T I O N A L C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements (cont’d): Examples of actions that demonstrate compliance: Identify the needs of LEP persons within your organization and: •

Develop materials consistent with the language requirements of your organization. For example, this might include providing an employee handbook, bulletin board materials and information about benefits in Spanish, if there are a number of employees who would benefit from these materials.

•

Consider the language skills of the individuals who are hired, trained and promoted to positions where they may supervise or be of assistance to LEP persons.

•

Train supervisors, foremen and other staff who are likely to have contact with LEP persons so that they are knowledgeable and aware of LEP policies and procedures and are able to assist LEP individuals in a manner that is consistent with the true intent of the policy. They should be aware of (1) the nature and scope of language assistance services and resources available to them, and (2) the procedures through which they may access those services to assist them in their duties.

•

Notify your employees of their right to language assistance.

•

Make use of the language assistance resources that are available through UDOT. (Information can be obtained by calling the UDOT Civil Rights Office and asking for the Title VI Coordinator.

•

Provide employee orientation in the native language of a new LEP employee.

•

Provide information about benefits and on-the-job training opportunities to LEP employees in their native language.

•

Make use of the Daily Dose program so that communication between workers can be improved.

•

Assign LEP employees to supervisors and foremen who have the language skills to effectively communicate with their employees.

Note: If the Civil Rights Office receives a complaint about failure to provide language assistance, it does not necessarily mean that “meaningful access” has not been provided to LEP individuals. The Civil Rights Office will make assessments on a case-by-case basis and will consider several factors in assessing compliance with LEP requirements. These factors include: • The number or proportion of LEP individuals eligible to participate, or likely to be directly or significantly affected by the program or activity. • The frequency of contact a participant or beneficiary is required to have with the program or activity. • The nature and importance of the program or activity to the participant or beneficiary. • The resources available to the recipient in carrying out the program or activity.

PAGE | 56

Utah Department of Transportation

Guide

for Contractors

E. TRAINING SPECIAL PROVISION REQUIREMENTS Training Special Provisions The On-the-Job Training (OJT) special provision found in Section XI, Specific Employment Responsibilities, of the specifications supersedes subparagraph II 6(b) of the FHWA 1273 and is an implementation of 23 USC 140(a).

Special Provisions, Required Contract Provisions Federal-Aid Construction Contracts, FHWA 1273, Section II Nondiscrimination, Paragraph, Training and Promotion, May 1, 2012.

Contractor Requirements:

Program Description

As part of the Equal Employment Opportunity Affirmative Action Program, the Contractor shall provide on-the-job training aimed at developing full journey status in the type of trade or job classification involved. The number of hours of training to be provided under the contract will be as shown on the bid schedule. Apprentices must be enrolled in an Office of Apprenticeship Training Employer and Labor Services (OATELS â&#x20AC;&#x201C; formerly BAT) approved programs; or if employee is a foreign-born and English-challenged worker, enrolled in the AGC Daily Dose English Program.

Training Hours

The minimum number of training hours is shown in the bid schedule. If the contractor provides training for more than the number of hours specified in the bid schedule, the per-hour payment will continue to be paid for all hours of training up to a maximum of double the assigned goal.

Subcontracting

If a portion of the contract work is subcontracted, determine how many, if any, of the trainees are to be trained by the subcontractor. Make this training special provision applicable to the subcontract. Retain the primary responsibility for meeting the training requirements imposed by this special provision.

A D D I T I O N A L C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements (contâ&#x20AC;&#x2122;d):

Minorities and Women

Training and upgrading of minorities and women toward journeyman status is a primary objective of the Training Special Provision. Enroll minority trainees and women (e.g., by conducting systematic and direct recruitment through public and private sources likely to yield minority and women trainees) to the extent that such persons are available within a reasonable area of recruitment. The steps taken to achieve compliance with the Federal Projects with Full Size Plan Sheets requirements of the Training Special Provision must be demonstrated. However, this training commitment is not intended, nor should it be used to discriminate against any applicant for training, whether a member of a minority group or not.

Classification

Trainees must be reported in correct classification for the work performed. If they work outside of the classification for the apprenticeship program they are enrolled in, the hours are not credited towards their journeyman status, nor will they be credited towards the OJT goal for a project.

Certification

Trainees must have a current certification date in the PDBS Certified Payroll Contractor Employee Set-Up Screen. The date must be updated every 90 days and a copy of the certification provided to the Resident Engineer. If the certification date is not updated, employee hours will not be credited toward the OJT goal.

Distribution of Hours

The number of trainees should be distributed among the work classifications on the basis of need and the availability of journeymen in the various classifications within a reasonable area of recruitment.

C-130 OJT Form

Apprentice-toJourneyman Ratio

PAGE | 58

The C-130 OJT, Training Commitment Form, must be submitted to the Resident Engineer at the preconstruction meeting or shortly after, but prior to beginning work on project. This form estimates the number of training hours anticipated by classification and is available at the following link: ____C-130_______________. The PDBS Certified Payroll System will generate an Apprentice-to-Journeyman Ratio report for the project. This report should be reviewed regularly to ensure compliance with the required Apprentice to Journeyman Ratio for the project. If there are issues of non-compliance, any apprentices outside the ratio requirement must be paid as a journeyman.

Utah Department of Transportation

Guide

for Contractors Contractor Requirements (cont’d): Each trainee should be provided with a copy of the training program at the time of enrollment and a certification showing the type and length of training should be provided once the program has been satisfactorily completed. Records should be maintained and periodic performance reports should be furnished to the Resident Engineer documenting contract performance as it relates to the Training Special Provision. The record keeping requirements for this specification can be met by:

Records

Reimbursement

C-139 Training Reimbursement Letter

OJT Supportive Services

•

Weekly entry of the certified payroll information into the PDBS Certified Payroll System for the duration of the project.

•

Entry of the certification dates into the PDBS Certified Payroll System before beginning work on the project and timely entry of renewal dates every 90 days for the duration of the project.

•

Submission of a copy of the certification letter from the OATELS that documents trainee registration and Davis-Bacon certification for each 90-day period that a trainee works on the project.

The Prime Contractor is reimbursed for the training hours worked through the monthly pay estimate, or bi-weekly estimate if applicable. The reimbursement must be forwarded to the appropriate training agencies utilized by the prime contractor and/or any subcontractors working on the project. Contractors may reimburse subcontractors directly and then require them to reimburse the training agency they use.

All contractors are required to complete a C-139, Training Reimbursement Letter, at the conclusion of the project. Two forms are available at the following link: _Exhibit E__; one for the prime contractor and one for any subcontractors using trainees on the project. These forms documents payment in full to all training agencies for their work on the project. They require signatures from both the contractor and the training agencies involved. The project will not close until the Reimbursement Letter or Letters have been completed and submitted to the Resident Engineer as a part of the project documentation.

Apprentices working on Federal-Aid projects are eligible for travel and daycare reimbursement. Details concerning this program can be obtained by calling the Civil Rights Office for assistance.

A D D I T I O N A L C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements (cont’d):

LD’s will be assessed if the project goal is not achieved and there has been no negotiation and approval from the Contracts Compliance and Certification Manager for a change to the goal prior to substantial completion.

Liquidated Damages / Disincentive

A request for a modification to a goal should be should be submitted to the Civil Rights Office along with documentation of good-faith efforts on the part of the contractor soon as possible so that an informed and impartial decision can be made. LD’s are based on the estimated number of hours submitted for each classification on the C-130 OJT, Training Commitment Form, at the beginning of the project. They are calculated by combining the base rate + the fringe rate x the number of hours which were not achieved for each classification.

PAGE | 60

Utah Department of Transportation

Guide

for Contractors

F. FHWA ANNUAL EEO REPORTING (FORM PR-1391) Form PR-1391 Each contractor, and each subcontractor, holding Federal-Aid contracts or subcontracts exceeding $10,000, is required to submit a 1391 report of their project activity during July of any given year. These reports are the basis of UDOT’s fiscal year reporting to FHWA, which is submitted every August, regarding the number of workers participating in Federal-Aid contracts as of July 31st. The following guidelines apply to the submission of this information, which should be entered into the PDBS Certified Payroll System: 1) A separate report is required for each project the contractor has under Federal contract in Utah during the month of July. 2) The staffing figures reported should represent the project work force on board in all, or part of the last payroll period preceding the end of July. The employees who have already been entered into the certified payroll system do not have to be re-entered on the 1391 entry screen, which is provided to enter the additional salaried, owner and clerical positions that were not reported in the electronic certified payroll system. 3) The prime contractor provides employment data for his employees only. Each subcontractor with a subcontract of $10,000 or more should submit an annual 1391 report with the employment data for his own project work force. (23 CFR 230.121(a)(2))

Contractor Requirements: The 1391 reporting screen is accessed in the PDBS Certified Payroll system, by selecting the project number, the contractor’s name, and the 1391 Salary Entry and Report selection under the Report drop down menu. Instructions for completing the report are as follows: •

The Reporting Month/Year should be entered by right clicking on the box and adding the date as follows: 7/1/20XX.

•

The Project % Complete should be entered in decimal format (i.e. 25 percent complete is entered as .25). This number represents the percent complete for the contractor, or subcontractor, who is reporting. Consequently, a subcontractor’s percent complete might be more, or less than the overall project percent complete reported by the prime.

•

Enter the Month and Year of peak employment as follows: XX/1/20XX. Again, this should represent the peak month for the contractor, or subcontractor, who is reporting, which may be different from the prime.

•

Number of Employees represents only the number of employees who will be reported in the box at the bottom on the report. Employees who have already been entered into a certified payroll for the project do not have to be reported on this form. Only enter information for those employees who are salaried or otherwise exempt from Davis-Bacon wage requirements and consequently would not have appeared on a certified payroll. (i.e. foremen, superintendents, engineers, supervisors, owners, or clerical personnel.)

A D D I T I O N A L C O N T R A C T R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements (cont’d): •

Right click in the box at the bottom of the report (i.e. under Job Name, Race, Gender, Number of Employees, Total Salary Amount and Total Hours Worked). Select a Job Name from the drop down menu and report the race, gender and number of employees associated with the Name. Estimate the hours and salary associated with each specific Job Name. Repeat this process until all employees who worked on the project during July but were exempt from Davis-Bacon wages and consequently would not have appeared on a certified payroll for the project have been reported.

•

Entry of this form into the PDBS Certified Payroll System for each project with active employees during July of each year completes the contractor’s 1391 reporting requirements. Although a paper copy of the form may be generated for the contractor’s records, it does not need to be submitted to the Resident Engineer. The Generate 1391 Report is primarily for the use of the Civil Rights Office.

•

Detailed instruction and screen shots of the PDBS Certified Payroll 1391 Entry Screen are available at the following link: _____Exhibit F_____.

Form PR-1392 The FHWA-1391s submitted by each Region are consolidated by a Contract Compliance Specialist and reported on Form FHWA-1392, which is forwarded to the Federal Highway Administration as part of the annual reporting process.

PAGE | 62

Utah Department of Transportation

Guide

for Contractors

SECTION III P R O J E C T

PROJECT-SPECIFIC CIVIL RIGHTS DOCUMENTATION REQUIREMENTS

S P E C I F I C R E Q U I R E M E N T S

PAGE | 63

Civil Rights Technical SECTION III PROJECT SPECIFIC DOCUMENTATION REQUIREMENTS

Although many of the Affirmative Action to Ensure Equal Employment Opportunity requirements for contractors participating in Federal-aid contracts are applicable to the contractor’s general business practices, there are project-specific documentation requirements which must be met for a UDOT Resident Engineer and a Region Contract Specialist to certify that the contractor has met the civil rights contract requirements. A brief summary of the project-specific civil rights documentation requirements on UDOT construction contracts is outlined below. The specifications for individual projects will also require other documentation associated with time, materials, and construction methods and processes.The information presented here is not to be interpreted as replacing, modifying, or superseding any part of a construction contract, or the actual laws governing business, or employment practices.

The construction contract governs the relationship between the Department and the Contractor and the terms of the contract take precedence over the instruction contained herein. Consequently, it is strongly recommended that the construction contract be read before looking to this Manual for guidance. Contractor Requirements: The following submissions are required prior to beginning work:

Submissions Prior to

•

OFCCP Notification: Every contractor who has a construction contract in excess of $10,000 at any tier is required to provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of a contract. (See Additional Requirements, Part C of Section II of this document.)

•

Identification of EEO & DBE Officer(s): The contractor should identify the EEO and DBE Officer(s) who will have responsibilities for the project, either before, or at the preconstruction conference.

•

EEO Policy: The contractor should submit a copy of his company EEO policy to the Region Contract Specialist (in the Region where the contractor’s home office is located) upon the award of the first contract (or subcontract) in any given calendar year and any time that an update to the policy is made. (Detailed instructions are available at the following link:___Exhibit H__.)

•

Project Specific EEO Complaint Procedure: The contractor should submit a project-specific EEO Complaint Procedure to the Resident Engineer, either before, or at the preconstruction conference. Subcontractors should submit EEO Contact Information to the Prime Contractor with their executed C-115 & C-116s to be posted on the bulletin board with the project-specific EEO Complaint Procedure. (The Resident Engineer will not approve the C-115 & C-116 until this information has been provided.)

•

EEO Meeting Documentation: The contractor is to submit documentation of a meeting where the EEO policy and its implementation was reviewed and explained prior to the start of work.

Beginning Work

PAGE | 64

Utah Department of Transportation

Guide

for Contractors

Submissions Prior to Beginning Work

•

C-115 & C-116: An executed C 115 and a C-116 must be submitted to the Resident Engineer for approval before a subcontractor appears on the project to work.

•

C-130 OJT: When there is a project Training Goal, a C-130 OJT, Training Commitment Form must be submitted to the Resident Engineer, either before, or at the preconstruction conference.

(cont’d)

The following guidelines apply to the use of DBE subcontractors to meet a project DBE goal: •

DBE Responsibilities •

A DBE commitment at bid is considered a binding contract. Consequently a subcontractor who is under contract to fulfill DBE goals shall not be terminated (or replaced) by a prime contractor without the prior written consent of the Civil Rights Office. If there is a problem in this area, please advise the Resident Engineer and work with the Civil Rights Office to obtain their approval of any proposed solution. DBE’s must perform a commercially useful function and must be allowed the opportunity to do their own work. If for some reason a DBE is unable to perform subcontract work, please advise the Resident Engineer and request some direction from the Civil Rights Office for assistance in the resolution of the problem.

The following guidelines apply to the contractor’s responsibility for prompt payment of subcontractors: •

The 2012 Standard Specifications require that subcontractors must be paid and the payments entered into the PDBS Subcontractor Payment System within 30 days of each estimate.

•

When entering payments into the PDBS Subcontractor Payment System, care should be taken to record payments to the correct bid item.

•

If a subcontractor works on new bid items which were created by change order, an additional C-115 must be created so that the bid items associated with the additional work will be available for use in the subcontractor payment system when the time comes to record payment to the subcontractor for work on those items.

Payment of Subcontractors

P R O J E C T S P E C I F I C R E Q U I R E M E N T S

PAGE | 65

Civil Rights Technical Contractor Requirements (cont’d): The following project-specific documents are required to be posted on the project bulletin board:

Bulletin Board Requirements

•

Contractor’s EEO Policy Statement and the EEO Policy Statements of each subcontractor.

•

The Project Specific Complaint Procedure.

•

The Project Wage Decision. (See the project contract documents.)

•

Any 1444s which have been submitted (including the DOL response when received).

•

The Davis-Bacon Act (Government Construction) poster.

•

Notice to All Employees Working on Federal or Federally Financed Construction Projects.

•

FHWA-1022 (False Statements on Federal-Aid Roads) poster.

In addition to the project-specific information, all posters required by law should also be posted on the project bulletin board. These currently include, but are not limited to the following: •

Equal Employment Opportunity is the Law Notice;

•

The Fair Labor Standards Act Federal Minimum Wage poster;

•

Your Rights Under the Family and Medical Leave Act poster;

•

The Job Safety and Health Protection (OHSA) poster; and

•

The Utah Department of Workforce Services Unemployment Insurance Notice to Workers.

Information regarding posting requirements is available on the US Department of Labor Website. Many of these posters are available in both English and Spanish. Please consult with your legal counsel if you have questions regarding your company’s specific requirements. The following guidelines apply to project certified payrolls: •

Each contractor, or subcontractor, should review the project Wage Decision to verify that the classifications in the decision cover the work required on the project. If classifications are missing, a 1444 should be generated from the PDBS Certified Payroll System and submitted to the Civil Rights Office who will forward it to the Department of Labor for approval.

•

Contracts will not be certified to close if there are outstanding 1444 Wage Rates Requests in the PDBS Certified System which were not submitted to the Civil Rights Office for processing. Please make sure these requests are printed, signed by the contractor (and subcontractor where applicable) and forwarded to the Civil Rights Office in a timely manner.

Certified Payrolls

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Utah Department of Transportation

Guide

for Contractors Contractor Requirements (cont’d):

Certified Payrolls

•

Certified Payrolls are to be entered into the PDBS Certified Payroll System weekly, within seven days of the pay date.

•

A $50.00 disincentive will automatically post to the PDBS Ledger for each payroll not entered into the system within the seven-day deadline. This disincentive applies to both the general contractor and all subcontractors on projects where Davis-Bacon wages apply, effective as of December 3rd, 2012.

•

For weeks where no work was performed, contractors should still enter the weekly payroll set-up information (i.e. payroll number and date) and enter ‘No Work’ in the contractor comments section.

•

When a contractor, or subcontractor’s work on the project is complete, please check the box indicating that the Final Payroll has been entered into the system.

(cont’d)

Detailed training regarding the use of the PDBS Certified Payroll Program is available at the following link: __ http://www.udot.utah.gov/main/f?p=100:pg:0:::1:T,V:1740,

The following guidelines apply to error messages generated by the PDBS Certified Payroll Systems: •

•

If the resolution of an error indicates that additional money is due, it should be promptly paid to the employee(s) involved and the documentation of a supplemental payroll should be entered into PDBS within seven days of the additional payment.

•

Payroll errors generated by the Certified Payroll System must be checked by the Resident Engineer and if correct, manually accepted. Consequently, in the event of an error, please notify the Resident Engineer when a correction, or supplemental entry has been made so that it can be verified and accepted in the system.

Certified Payroll Errors

The resolution of any certified payroll errors is the responsibility of the contractor. If the PDBS Certified Payroll System indicates that an error has been made, the contractor, or subcontractor, should take immediate action to promptly resolve the error. Construction contracts showing payroll errors in the PDBS Certified Payroll System will not be certified to close until all errors have been resolved.

See Section II of this document for general information regarding contract labor and wage and hour requirements. Please consult with your legal counsel if you have questions regarding your specific contract responsibilities, as well as your general responsibilities to employees under the law.

P R O J E C T S P E C I F I C R E Q U I R E M E N T S

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Civil Rights Technical Contractor Requirements (cont’d):

Harassment, Intimidation And Coercion (HIC) Training

FHWA regulations require that all contractors sho work on Federal-aid projects must maintain a workplace free of harassment, intimidation, and coercion. All contractors on a Federal-Aid project must have HIC LANGUAGE WITHIN THE EEO policy, stating that they maintain a workplace free of harassment, intimdation, and coercion. This must be included on the Bulletin Board.

The following guidelines apply to the documentation required for projects with an OJT Training goal:

OJT Training

PAGE | 68

•

The C-130 OJT, Training Commitment Form, must be submitted to the Resident Engineer at the preconstruction meeting or shortly after, but prior to beginning work on the project.

•

Certification dates for individual trainees should be entered into the PDBS Certified Payroll System before beginning work and then updated every 90 days for the duration of the project.

•

A copy of the certification letter from the OATELS that documents trainee registration and Davis-Bacon certification should be submitted to the Resident Engineer before trainees begin work on the project and at each 90-day period that trainees continue work on the project.

•

Weekly entry of the certified payroll information into the PDBS Certified Payroll System for the duration of the project is required for the trainee hours to post to the PDBS project ledger in a timely manner.

Utah Department of Transportation

Guide

for Contractors Contractor Requirements (cont’d): •

OJT Training (cont’d)

A Training Reimbursement Letter documenting payment of all funds to the training organizations involved should be submitted to the Resident Engineer by the contractor, and any applicable subcontractors, at the conclusion of work on the project.

Additional information regarding the OJT Training requirements can be found in Section II and Exhibit E of this document.

Other project-specific documentation requirements are as follows:

1391s and Other Reporting Requirements

•

Contractors are required to make employees available to the Resident Engineer’s Team for interviews, which are a part of the project documentation process.

•

Contractors are required to provide any additional documentation requested by the Resident Engineer in his effort to determine compliance with Labor, Wage and Hour, DBE and other Civil Rights requirements. (i.e. time records, copies of pay stubs, complete copies of subcontracts, purchase orders etc.)

•

Each contractor, and each subcontractor, who have Federal-Aid projects exceeding $10,000, is required to submit a 1391 report of their project activity during July of any given year.

•

Contractors are required to maintain and provide a CR-257 Project Employment Data Form whenever one is requested by the Resident Engineer, the Civil Rights Office, or a FHWA representative.

•

Contractors are required to keep all project records and make them available for inspection, or audit, for three years after the project has been completed.

P R O J E C T S P E C I F I C R E Q U I R E M E N T S

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Civil Rights Technical

SECTION IV

PREPARING FOR A COMPLIANCE REVIEW

PAGE | 70

Utah Department of Transportation

Guide

for Contractors

SECTION IV PREPARING FOR A COMPLIANCE REVIEW

The Utah Department of Transportation Civil Rights Office conducts compliance reviews to determine: • Whether a contractor’s affirmative action efforts comply with regulatory requirements. • Whether a contractor has demonstrated good-faith efforts in meetings its affirmative action requirements. • Whether a contractor’s employment policies and practices are free of discriminatory intent or impact.

• Whether a contractor needs technical assistance to understand the review process or to ensure that its affirmative action efforts are complete and effective. • How to best remedy any discriminatory practices or regulatory violations. When contractors are notified of a compliance review, they are given an overview of the procedures that the Civil Rights Office will use to conduct the review. Contractors should make sure than an officer of the company who is empowered to make and discuss policy, and to make commitments for corrective action where necessary, is present during the evaluation. Contractors can prepare for a compliance review by conducting a self-audit as a component of the affirmative action development process, or responding to inquiries likely to be asked by the Civil Rights Office personnel during a periodic program review. A UDOT Compliance Specialist may ask to see documented evidence of a contractor’s compliance efforts in the following areas: Contractor Guidelines: Audit of Affirmative Action Does the contractor have written documentation of its efforts to comply with each of the 16 EEO and affirmative action specifications? Specifications

External Dissemination of Policy

Has the contractor conspicuously displayed the required Equal Employment Opportunity and is the Law poster (available at the following link. http://www.dol.gov/ofccp/regs/compliance/posters/ pdf/eeopost.pdf) at each work site or company location in areas accessible to both applicants and employees? Do the contractor’s contracts and purchase order forms display or reference the equal opportunity clauses as required? Do recruiting publications use the phrase “An Equal Opportunity Employer?” Do written notices sent to unions and bargaining agreements with unions include an EEO clause?

P R E P A R I N G F O R A C O M P L I A N C E R E V I E W

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Civil Rights Technical Contractor Guidelines (contâ&#x20AC;&#x2122;d):

Internal Dissemination of Policy

Community Relations

Has the contractor reviewed its EEO policy and affirmative action obligations with all on-site supervisory and management personnel before the start of any new project and then not less often than once every six months? Has the contractor kept records of these reviews? Have employees been informed of the contractorâ&#x20AC;&#x2122;s commitment to equal employment opportunity for all persons, without regard to race, color, religion, sex or national origin?

What is the equal employment opportunity image of the company within the community?

Audit of Personnel Opera- Does the company have written personnel policies and procedures? Have these policies and practices had an adverse impact on minorities, women, or qualified individuals with disabilities? tions

Does the contractor maintain proper applicant flow records?

Maintenance of Records

Does the contractor maintain proper records about terminations and separations? Does the contractor maintain a system for identifying minority and female applicants for future consideration?

Directing Recruitment Efforts

What recruitment sources are used by the contractor? Are these sources likely to refer women and minorities? Are written records of recruiting efforts maintained?

Are applicant processing procedures carried out in a uniform and nondiscriminatory fashion?

Effect of Personnel Practices

Is there a disparity between the separation and termination rate of minorities and women, as compared to non-minorities and males? If so, why? Does the contractor employ minorities and women in each of its crafts? If so, to what extent? If not, what efforts has the contractor made to recruit members of these groups?

Training Programs

PAGE | 72

Are training programs, including apprenticeship programs, available to employees without regard to race, sex, or their status as an individual with a disability?

Utah Department of Transportation

Guide

for Contractors Contractor Guidelines (cont’d): Do jobs offered by the contractor have similar duties but different pay rates? If so, do minorities or women earn less than their non-minority or male counterparts?

Compensation Disparities

Do minorities or women receive lower starting rates of pay than their counterparts with similar education and experience? Has the contractor reviewed its salary structure to ensure that it does not discriminate against minorities or women?

Religion/National Origin

Sex Discrimination

Harassment

Has the contractor reviewed its employment practices to determine that members of various religious or ethnic groups have received fair consideration for job opportunities? Have recruiting sources been informed of the contractor’s commitment to provide equal employment opportunity without regard to religion or national origin?

P R E P A R I N G F O R A

Does the contractor’s policy on maternity leave meet regulatory requirements?

Has the contractor implemented policies and procedures to identify and remedy issues of racial, color, religious, national origin, disability, and/or sexual harassment?

Having answers and documentation for the above questions will go a long way toward preparing a contractor for a UDOT Civil Rights compliance review. Contractors should also know that when a compliance review is scheduled, civil rights personnel will request the following documents for on-site inspection: • Books, records, payrolls, and other relevant documents, including a list, separated by construction project, of all employees who are members of protected groups who worked for the contractor during the 12 months preceding the review. • Documentary evidence of the implementation of each of the specific affirmative action standards set forth in the 16 specifications. • A list of all Federal projects, including contract numbers, locations, estimated dollar values, percent completed, and projected completion dates. • Documented evidence of attendance at HIC training for every worker who appeared on a certified payroll for a federal-aid project.

C O M P L I A N C E R E V I E W

• A copy of the company’s EEO Policy, their EEO Complaint Procedures and their Affirmative Action Program.

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CIVIL RIGHTS TECHNICAL GUIDE FOR CONTRACTORS

udot.utah.gov/go/civilrights