Labor Complaint

Complaint for: U.S. Department of Labor

To: U.S. Department of Labor,

By: Mr. Chad Beckwith Smith

Professional Association of FEMA Inspectors,
848 N.Rainbow Blvd. #2020,
Las Vegas, Nevada 89107-1103,

This complaint is filed with the Department of labor on behalf of all inspectors working for Parsons Brinkerhoff / Alltech under the FEMA Individual Assistance Housing Inspection Contract administered by FEMA.

Dated this 19th day of April, 2007

                                                 Complaint Introduction

   This complaint is filed with the Department of labor on behalf of all inspectors working for Parsons Brinkerhoff / Alltech under the FEMA Individual Assistance Housing Inspection Contract administered by FEMA.
    I claim that I am an at will employee and an interested party pursuant to 29 CFR 4.191. In this complaint here and after references to the contractor shall mean Parsons Brinkerhoff / Alltech. References to inspectors shall mean persons retained by PB / Alltech to perform housing inspections and all persons with ancillary responsibility for administrating or completing the work under the housing inspection contract including all direct PB / Alltech employees located at the companies facilities in Winchester Virginia.
    References to the act shall mean the contractors service act and other related federal laws that are applicable to the specific areas of the complaint. Authority The authority of this complaint is pursuant to the following law.

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29 CFR 4.191 - Complaints and compliance assistance. Section Number: 4.191 Section Name: Complaints and compliance assistance. (a) Any employer, employee, labor or trade organization, contracting agency, or other interested person or organization may report to any office of the Wage and Hour Division (or to any office of the Occupational Safety and Health Administration, in instances involving the safety and health provisions), a violation, or apparent violation, of the Act, or of any of the rules or regulations prescribed thereunder. Such offices are also available to assist or provide information to contractors or subcontractors desiring to insure that their practices are in compliance with the Act. Information furnished is treated confidentially. It is the policy of the Department of Labor to protect the identity of its confidential sources and to prevent an unwarranted invasion of personal privacy. Accordingly, the identity of an employee who makes a confidential written or oral statement as a complaint or in the course of an investigation, as well as portions of the statement which would reveal his identity, will not be disclosed without the prior consent of the employee. Disclosure of employee statements shall be governed by the provisions of the ``Freedom of Information Act'' (5 U.S.C. 552, see 29 CFR part 70) and the ``Privacy Act of 1974'' (5 U.S.C. 552a). (b) A report of breach or violation relating solely to safety and health requirements may be in writing and addressed to the Regional Administrator of an Occupational Safety and Health Administration Regional Office, U.S. Department of Labor, or to the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, Washington, DC 20210. (c) Any other report of breach or violation may be in writing and addressed to the Assistant Regional Administrator of a Wage and Hour Division's regional office, U.S. Department of Labor, or to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. (d) In the event that an Assistant Regional Administrator for the Wage and Hour Division, Employment Standards Administration, is notified of a breach or violation which also involves safety and health standards, the Regional Administrator of the Employment Standards Administration shall notify the appropriate Regional Administrator of the Occupational Safety and Health Administration who shall with respect to the safety and health violation take action commensurate with his responsibilities pertaining to safety and health standards. (e) Any report should contain the following: (1) The full name and address of the person or organization reporting the breach or violations. (2) The full name and address of the person against whom the report is made. (3) A clear and concise statement of the facts constituting the alleged breach or violation of any of the provisions of the McNamara- O'Hara Service Contract Act, or of any of the rules or regulations prescribed thereunder.
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Request The department of labor is hereby requested to investigate the attached complaints. The department of labor is herby requested to recover uncompensated wages pursuant to the provisions of; ________________________________________
Authority • 29 CFR 4.187 - Recovery of underpayments. ________________________________________

• COMPLAINT #1

The wage determination for the FEMA Housing inspection contract fails to contain a wage determination for the geographic locations where the work is to be performed as detailed in CFR 29 Chapter 1 Part 4 Sub part A as quoted below.
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• 29 CFR 4.3 - Wage determinations. Section Number: 4.3 Section Name: Wage determinations. (c) Generally, wage determinations issued for solicitations or negotiations for any contract where the place of performance is unknown will contain minimum monetary wages and fringe benefits for the various geographic localities where the work may be performed which were identified in the initial solicitation (see Sec. 4.4(a)(2)(i)). 2)(i) Where the place of performance of a contract for services subject to the Act is unknown at the time of solicitation, the solicitation need not initially contain a wage determination. The contracting agency shall, upon identification of firms participating in the procurement in response to an initial solicitation, file with the Wage and Hour Division, Employment Standards Administration, Department of Labor, its notice of intention to make a service contract. In addition to the requirements contained in paragraph (a)(1) of this section, such submission shall identify each location where the work may be performed as indicated by participating firms. Subsequent amendments to the solicitation setting forth the wage determinations and any necessary change in the date and time for submission of final bids shall be made upon receipt of wage determinations. An applicable wage determination must be obtained for each firm participating in the bidding for the location in which it would perform the contract. The appropriate wage determination shall be incorporated in the resultant contract documents and shall be applicable to all work performed thereunder (regardless of whether the successful contractor subsequently changes the place(s) of contract performance). (ii) There may be unusual situations, as determined by the Department of Labor upon consultation with a contracting agency, where the procedure in paragraph (a)(2)(i) of this section is not practicable in a particular situation, in which event the Department may authorize a modified procedure whichmay result in the subsequent issuance of wage determinations for one or more composite localities. ________________________________________

• COMPLAINT # 2

    The contractor PB / Alltech has created other classes of employees and failed to obtain a wage determination for those classes of employees. These classes are Training Instructors, Team Leaders, Quality Control Supervisors, Individual Inspector Mentor Supervisors, Field Reviewers, Office Reviewers, Work Assignment Supervisors, Registration Intake Workers, and Technical Support Personal. This list is not all inclusive, other classes of employees exist within the contract for which no wage determination has been requested or issued. This is a violation of the act as quoted below. ________________________________________
•Authorized representative pursuant to the labor standards clause in paragraph (b) of this section. A copy of the 29 CFR 4.3 - Wage determinations. Section Number: 4.3 Section Name: Wage determinations. (a) The minimum monetary wages and fringe benefits for service employees which the Act requires to be specified in contracts and bid solicitations subject to section 2(a) thereof will be set forth in wage determinations issued by the Administrator. Wage determinations shall be issued as soon as administratively feasible for all contracts subject to section 2(a) of the Act, and will be issued for all contracts entered into under which more than 5 service employees are to be employed. (b) Such wage determinations will set forth for the various classes of service employees to be employed in furnishing services under such contracts in the appropriate localities, minimum monetary wage rates to be paid and minimum fringe benefits to be furnished them during the periods when they are engaged in the performance of such contracts, including, where appropriate under the Act, provisions for adjustments in such minimum rates and benefits to be placed in effect under such contracts at specified future times. The wage rates and fringe benefits set forth in such wage determinations shall be determined in accordance with the provisions of sections 2(a)(1), (2), and (5), 4(c) and 4(d) of the Act from those prevailing in the locality for such employees, with due consideration of the rates that would be paid for direct Federal employment of any classes of such employees whose wages, if federally employed, would be determined as provided in 5 U.S.C. 5341 or 5 U.S.C. 5332, or from pertinent collective bargaining agreements with respect to the implementation of section 4(c). The wage rates and fringe benefits so determined for any class of service employees to be engaged in furnishing covered contract services in a locality shall be made applicable by contract to all service employees of such class employed to perform such services in the locality under any contract subject to section 2(a) of the Act which is entered into thereafter and before such determination has been rendered obsolete by a withdrawal, modification, or supersedure. (g)(1) The contractor and each subcontractor performing work subject to the Act shall make and maintain for 3 years from the completion of the work records containing the information specified in paragraphs (g)(1) (i) through (vi) of this section for each employee subject to the (i) Name and address and social security number of each employee. (ii) The correct work classification or classifications, rate or rates of monetary wages paid and fringe benefits provided, rate or rates of fringe benefit payments in lieu thereof, and total daily and weekly compensation of each employee. (v) A list of monetary wages and fringe benefits for those classes of service employees not included in the wage determination attached to this contract but for which such wage rates or fringe benefits have been determined by the interested parties or by the Administrator or authreport required by the clause in paragraph (b)(2)(ii) of this section shall be deemed to be such a list. ________________________________________ •

COMPLAINT #3

    The contracting officer is aware that the contractor has not maintained hourly wage records as provided under the act. The contracting officer is aware of the per inspection basis without regard for hours worked that the contractor pays its inspectors under. The contracting officer has neglected her duties under the act by failing to take action against the contractor. ________________________________________
Authority • (3) Failure to make and maintain or to make available such records for inspection and transcription shall be a violation of the regulations and this contract, and in the case of failure to produce such records, the contracting officer, upon direction of the Department of Labor and notification of the contractor, shall take action to cause suspension of any further payment or advance of funds until such violation ceases. ________________________________________ •

COMPLAINT #4

    The contractor PB / Alltech has been the recipient of the FEMA Housing inspection contract since 1998 From that time to present the contractor has failed to pay its inspectors on a period no greater than bi monthly. Routinely the contractor has with held payment for services for months at a time. The contractor as part of it payment program established a procedure where they with held from payments due up to 25% of the money that was due to inspectors. This with held payment would not be paid until months and sometimes years later. The contractor as part of its payment program has established an incentive program in which the inspector is paid an additional amount for quality work. The contractor fails to pay this incentive to the inspector when the contractor knows that it is earned or due. Routinely the contractor has with held this payment for years at a time.
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Authority • (h) The contractor shall unconditionally pay to each employee subject to the Act all wages due free and clear and without subsequent deduction (except as otherwise provided by law or Regulations, 29 CFR part 4), rebate, or kickback on any account. Such payments shall be made no later than one pay period following the end of the regular pay period in which such wages were earned or accrued. A pay period under this Act may not be of any duration longer than semi-monthly. ________________________________________ •

COMPLAINT #5

    The contracting officer is fully aware that the contractors payment schedule and the fact that the contractor has illegally withheld moneys due to its inspectors. The contracting officer has failed to follow the act and take action against the contractor. ________________________________________

Authority • The contracting officer shall withhold or cause to be withheld from the Government prime contractor under this or any other Government contract with the prime contractor such sums as an appropriate official of the Department of Labor requests or such sums as the contracting officer decides may be necessary to pay underpaid employees employed by the contractor or subcontractor. In the event of failure to pay any employees subject to the Act all or part of the wages or fringe benefits due under the Act, the agency may, after authorization or by direction of the Department of Labor and written notification to the contractor, take action to cause suspension of any further payment or advance of funds until such violations have ceased. Additionally, any failure to comply with the requirements of these clauses relating to the Service Contract Act of 1965, may be grounds for termination of the right to proceed with the contract work. In such event, the Government may enter into other contracts or arrangements for completion of the work, charging the contractor in default with any additional cost. ________________________________________ •

COMPLAINT #6

    The FEMA Housing Inspection contract has been in place for many years. The contracting officer has known about the different classes of employees that are used under the contract. The different class of employees is clearly detailed in the RFP and the Bid submitted by PB / Alltech. The contracting officer has failed to perform his / her duties by failing to enforce the contractor service act employee class sections and failed to submit a SF – 98 for the identifiable known classes when drawing up the Request for Proposal. See the act sections quoted below. ________________________________________ •

29 CFR 4.4 - Notice of intention to make a service contract. Section Number: 4.4 Section Name: Notice of intention to make a service contract. (b) The contracting agency shall file with its Notice of Intention to Make a Service Contract (SF-98) either a Standard Form 98-A or a statement in writing, containing the following information concerning the service employees expected by the agency to be employed by the contractor and any subcontractors in performing the contract: (1) The number of such employees of all classes, or a statement indicating whether such number will or will not exceed 5, the number for which the inclusion of a wage determination in the contract is mandatory under the provisions of section 10 of the Act as set forth in Sec. 4.3(a); and (2) A listing of those classes of service employees expected to be employed under the contract which, if employed by the agency, would be subject to the wage provisions of 5 U.S.C. 5341 or 5 U.S.C. 5332, together with a specification of the rates of wages and fringe benefits that would be paid by the Government to employees of each such class if such statute were applicable to them. (Under section 2(a)(5) of the Act and Sec. 4.6 the inclusion of such a statement in the service contract is also required.) ________________________________________ •

COMPLAINT #7

    The contractor PB / Alltech has failed to pay the minimum wage as determined under the Contractor Services Act. Specifically the contractor has failed to pay inspectors for time spent working performing mandatory work in the following areas
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                                                     Background

1. Training

    The contractor has held training sessions for persons who are going to perform the inspections. This training is mandatory and a requirement to perform inspections for the contractor. The contractor failed to pay all persons who were required to take this mandatory training. The training consisted of classes held throughout the USA and were two day classes.

2. Continuing Educations / On line Training

    The contractor required all inspectors to take on line inspector training / continuing education from the contractors web site. This on line training must be completed prior to working and is a requirement for continued employment. The approximate time to take the on line a class is listed on the web site. The contractor failed to pay all employees for the time to do the required training / continuing education.

3. Travel time

    The contractor routinely deploys inspectors to disaster areas as directed by FEMA. Some Inspectors drive to disaster areas and others are flown to disaster areas by the contractor. The contractor has failed to pay the inspectors for travel time as required by the act.

4. Contractor Briefing

    The contractor routinely deploys inspectors to disaster areas as directed by FEMA. All inspectors are required to attend a contractor briefing held by the contractor. Prior to performing inspections each inspector is required to attend a contractor briefing. The contractor has failed to pay the inspectors for attending the required briefing. In addition, routinely, the inspectors are required to wait a day or two after arriving at the disaster site for the contractor to set up the briefing. The contractor failed to pay the inspectors for the work time waiting for the briefing.

5. Equipment Issuance, Equipment Return and Replacement of non working equipment.

    Prior to performing inspections the inspectors are issued contractor supplied equipment to perform the inspections. The inspector is required to report to a specific location to pick up the equipment. Upon completion of work, the inspector is required to return all contractor equipment. The contractor requires the inspector to report to the contractors work site to return the equipment. During inspections contractors equipment routinely breaks down and needs to be replaced. The inspector is required to travel to the contractors location to exchange the equipment. The contractor has failed to pay the inspector for the time spent during equipment issuance, return and exchange.

6. New Inspector disaster site review.

    New inspectors on their first deployment upon completing their inspections are required to report to the contractors review site to have their work reviewed by the contractor. The contractor has failed to pay the inspector for the travel time and time spent during disaster site review.

7. Contractor Briefing updates.

Twice daily the inspector is required by the contractor to dial into a voicemail inspector update system run by the contractor. The contractor is required to listen to voicemail updates. Routinely these broadcasts can take up to 30 minutes each. The contractor has failed to pay the inspector for the time spent getting the job required briefing updates.

8. Required signature forms and information required to be given to FEMA Applicants.

   As part of the inspection process the contractor requires the inspector to distribute informational material to FEMA applicants and also have the applicant sign FEMA form 90-69. The inspector is given the forms during the contractor briefing. The contractor limits the amount of forms each inspector can have. When the inspector runs out of forms, the contractor requires the inspector to travel to the contractors location to pick up more forms. The contractor again limits the forms the inspector can have. Routinely an inspector may have to travel to the contractors site two or three times during a disaster. The contractor has failed to pay the inspector for the time required to acquire the paperwork necessary to complete the inspection as required by the contractor.

9. Submitting Form 90 – 69 to the contractor.

The inspector is required by the contractor to return to the contractor the signed forms that are part of the inspection process. The inspector is required to separate the 5 part form and list the applicants name and application number on a separate form. The inspector then submits this package to the contractor. The contractor requires the inspector to submit these forms in a specific order and format. The contractor has failed to pay the inspector for the time required to perform this itemization work and the travel time needed to physically deliver the forms to the contractor.

10. Upload of photographs.

As part of the inspection process the inspector via contractor supplied equipment is required to upload inspection photographs to the contractor via the telephone. Routinely because of slow phone lines, large data transfer amounts, and slow contractor equipment this upload process takes a minimum of 1 to 2 hours per day. The contractor has failed to pay the inspector for time spent on this job required assignment.

11. Photo review, Inspection review, Winchester VA.

    The contractor has instituted a photo review and inspection review process at its headquarters in Winchester VA. Routinely inspectors are called on the phone by the contractor to answer questions regarding completed inspections. The contractor has failed to pay the inspector for the time spent during this phone review process. Routinely this phone review can take a minute or in other cases 30 minutes per call.

12. Fingerprinting and submitting forms

    The contractor requires all inspectors to submit their fingerprints and a security questioner but does not pay for the time and expense involved in doing so.

13. Inspector Disincentive Program

The contractor has established an inspector disincentive program. The contractor has described this as a program to increase performance and inspection quality thru disincentives for supposed poor quality work. Under this program the inspector is not paid for work performed if the contractor determines the work does not meet the contractors specifications. Failure to pay an employee for the hours worked is a violation of the contractors service act. Under the disincentive program an inspector is not paid for his work if the photo’s are not up to the contractors quality, if the inspection is sent back to the contractor by FEMA, if the contractors review staff finds inspection errors in the inspections, and if an error is found in the filling out of form 90-69. Under this program, at the discretion of the contractor, the inspector may be required to correct the inspection with no compensation. This additional correction requirement is also a violation of the contractors service act in that again, the contractor is not paying the inspector for the work that the contractor is requiring the inspector to do. ________________________________________

• 29 CFR 4.178 - Computation of hours worked. Section Number: 4.178 Section Name: Computation of hours worked. Since employees subject to the Act are entitled to the minimum compensation specified under its provisions for each hour worked in performance of a covered contract, a computation of their hours worked in each workweek when such work under the contract is performed is essential. Determinations of hours worked will be made in accordance with the principles applied under the Fair Labor Standards Act as set forth in part 785 of this title which is incorporated herein by reference. In general, the hours worked by an employee include all periods in which the employee is suffered or permitted to work whether or not required to do so, and all time during which the employee is required to be on duty or to be on the employer's premises or to be at a prescribed workplace. The hours worked which are subject to the compensation provisions of the Act are those in which the employee is engaged in performing work on contracts subject to the Act. However, unless such hours are adequately segregated, as indicated in Sec. 4.179, compensation in accordance with the Act will be required for all hours of work in any workweek in which the employee performs any work in connection with the contract, in the absence of affirmative proof to the contrary that such work did not continue throughout the workweek. ________________________________________

29 CFR 4.6 - Labor standards clauses for Federal service contracts exceeding $2,500. Section Section Number: 4.6 Section Name: Labor standards clauses for Federal service contracts exceeding $2,500. ________________________________________

b)(1) Each service employee employed in the performance of this contract by the contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor or authorized representative, as specified in any wage determination attached to this contract.

COMPLAINT #8

    Compliance with contractor service act hourly wage rate - Inspections As detailed in many section of this complaint, the contractor has failed to pay the inspectors for work hours that the contractor has required that they put in. This section of the complaint will deal specifically with the damage inspection done by the inspector.

    The contractor service act requires that the contractor insure that employees are paid a minimum amount per hour as determined by the prevailing wage rate. The contractor has instituted a system to pay each inspector on a per inspection basis. The contractor treats each inspector as an independent contractor paid on a per inspection basis. The contractor pays the inspector an amount per inspection that is greater than the prevailing hourly rate as determined by the contracts labor department wage determination.

    Prior to performing work at a disaster site each inspector is required to sign a contractor developed document know as a task order. This task order details how the contractor has determined that each inspection should take one hour or less. The task order requires each inspector to notify the contractor if an inspection has taken, is going to take, or is anticipated to take longer than one hour. With this payment per inspection greater than the minimum wage rate and the establishment of an average one hour per inspection, theoretically, or constructively, the contractor could be viewed as complying with the contract service act minimum hourly wage requirements for the inspection. However this is not the case. The contractor has developed this system but failed to figure in all other factors that go into the inspection process and failed to establish a payment system should the inspection take longer than one hour.

   The contractor has never established or notified the inspector who specifically within the contractors company that the inspector is to notify if an inspection will take longer than one hour. No system exists within the contractors program for dealing with inspections that will take longer than one hour. The contractor has set up a program to give the perception of contractor service act minimum wage compliance but never developed a program to deal with a non compliance issue. In short the contractor has placed the responsibility on the inspector to notify the contractor of any contractor service act minimum wage non compliance issues and then never told the inspector how to or who to notify of the compliance violation. No one with in the contractors direct employee network knows how to deal with this issue and the contractor has never developed or implemented a program on how to deal with wage non compliance issues.

    Routinely and often, inspectors call in to the contractors main number to complain / notify the contractor that the inspection assigned to them is a great distance away from them. The inspector details the driving time to and from the inspection and as required under the task order notifies the contractor that with the driving time alone, the inspection will take longer than one hour.

   The inspector is instructed by the contractor that the inspection must be done by the inspector and if not completed, no new work will be issued. Since the contractor has no program do deal with inspections greater than one hour, the contractors service act minimum hourly wage violation repeatedly goes uncompensated. The contractors failure to develop a system for handling act wage compliance issues constitutes a will full and knowing violation of the act on the part of the contractor. The contractor pays the travel cost to deploy inspectors to disaster sites. The inspector is requested to complete inspections within 24 hours of being issued to the inspector. The inspection must be completed within 72 hours or no new work is issued to the inspector. The inspector is required to remain in his / her assigned region and wait for work to be issued. During the hours of 6:00 AM and 11:00 PM the contractor requires the inspector to electronically communicate with the contractors computer approximately every two hours to check for new work. If work is issued the inspector is expected to complete that work as soon as possible. If no work is issued, the inspector continues to check every two hours or until the contractor releases the inspector from the job and allows him or her to return home.

    The contractor has deployed inspectors away from their home domicile and requires them to perform acts on a daily basis from 6:00 AM until 11:00 PM. The contractor routinely acknowledges that the inspectors usually work 18 hours a day. The contractor keeps no time records on the inspectors and has failed to pay the inspectors for the time worked. Since inspectors are only paid only for completed inspections, an inspector who does not receive work in any given day receives no pay yet he is required by the contractor to be available to do inspections and check for inspections to do through out the day. This is a violation of the minimum wage provisions of the contractors service act. By virtue of the inspector being away from his home domicile, being required to remain in the assigned inspection area, being required to check for work throughout the day, being required to be available to do inspections on a moments notice, constitutes work hours under the act for which the inspectors is not compensated.

    The contractor is responsible for payment of travel expenses from the inspectors home to the disaster area and back. Routinely the contractor, thru a travel agency, purchases round trip airline tickets for the inspector. The inspector is never physically given the tickets. The contractor retains control of the tickets so as to be able to control when the inspector can go home. Routinely an inspector can be at a disaster site and not be issued any work to do for days at a time and conversely receive no pay for days at a time. The contractor routinely refuses to provide the return air fare for the inspector until the contractor determines that he has no more need for the inspector.

The contractor has established a independent contractor relationship, and payment on a per inspection basis yet the contractor has direct control over when the inspector can leave the job by virtue of the contractor retaining control of the return air fare. Routinely inspectors are held against their will at the disaster site by the contractor refusing to provide the agreed return airfare ticket to the inspector until the contractor wants to send the inspector home. This holding of the return air fare ticket hostage by the contractor voids all so called independent contractor agreements because the inspector is not acting independently and is at the mercy of the contractor as to when he or she will be allowed to return home. There is no independent business relationship when the contractor has direct control over when the inspector can leave the job. Since the contractor does exercise direct control over when the inspector can leave a job, the contractor is then responsible for the reasonable hours of work that the inspector is required to put in while at a disaster site.

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29 CFR 4.178 - Computation of hours worked. Section Number: 4.178 Section Name: Computation of hours worked. Since employees subject to the Act are entitled to the minimum compensation specified under its provisions for each hour worked in performance of a covered contract, a computation of their hours worked in each workweek when such work under the contract is performed is essential. Determinations of hours worked will be made in accordance with the principles applied under the Fair Labor Standards Act as set forth in part 785 of this title which is incorporated herein by reference. In general, the hours worked by an employee include all periods in which the employee is suffered or permitted to work whether or not required to do so, and all time during which the employee is required to be on duty or to be on the employer's premises or to be at a prescribed workplace. The hours worked which are subject to the compensation provisions of the Act are those in which the employee is engaged in performing work on contracts subject to the Act. However, unless such hours are adequately segregated, as indicated in Sec. 4.179, compensation in accordance with the Act will be required for all hours of work in any workweek in which the employee performs any work in connection with the contract, in the absence of affirmative proof to the contrary that such work did not continue throughout the workweek. ________________________________________ •

29 CFR 4.6 - Labor standards clauses for Federal service contracts exceeding $2,500. Section Number: 4.6 Section Name: Labor standards clauses for Federal service contracts exceeding $2,500. (b)(1) Each service employee employed in the performance of this contract by the contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor or authorized representative, as specified in any wage determination attached to this contract. ________________________________________

COMPLAINT #9

    The contractor routinely requests that inspectors inspect buildings that are tagged unsafe by local county officials. The inspectors are routinely required to enter mold infested, flooded dwellings. The contractor has issued orders to each inspector that the inspector shall not wear any type of masks or respiratory protection while doing inspections. This policy was in effect during the 911 World Trade Center Disaster. While all other contractors and federal agencies were advising employees to protect against airborne particulate, this contractor had issued orders that inspectors not wear respiratory protection. The contractor has no safety and health standards for the inspectors to follow. The general rule of guidance is to get the inspection done no matter what. ________________________________________ •

(f) The contractor or subcontractor shall not permit any part of the services called for by this contract to be performed in buildings or surroundings or under working conditions provided by or under the control or supervision of the contractor or subcontractor which are unsanitary or hazardous or dangerous to the health or safety of service employees engaged to furnish these services, and the contractor or subcontractor shall comply with the safety and health standards applied under 29 CFR part 1925. ________________________________________ •

COMPLAINT #10

    The contractor, PB / Alltech, and its subcontractors have not maintained any work records relating to hours worked by inspectors who are subject to the wage and hour provisions of the act.________________________________________ •

(g)(1) The contractor and each subcontractor performing work subject to the Act shall make and maintain for 3 years from the completion of the work records containing the information specified in paragraphs (g)(1) (i) through (vi) of this section for each employee subject to the Act and shall make them available for inspection and transcription by authorized representatives of the Wage and Hour Division, Employment Standards Administration of the U.S. Department of Labor: • (iii) The number of daily and weekly hours so worked by each employee. ________________________________________ •

COMPLAINT #11

     The contractor has failed to include these clauses in its agreements with its subcontractors. ________________________________________

Authority • (j) The contractor agrees to insert these clauses in this section relating to the Service Contract Act of 1965 in all subcontracts subject to the Act. The term contractor as used in these clauses in any subcontract, shall be deemed to refer to the subcontractor, except in the term Government prime contractor. • (k)(1) As used in these clauses, the term service employee means any person engaged in the performance of this contract other than any person employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in part 541 of title 29, Code of Federal Regulations, as of July 30, 1976, and any subsequent revision of those regulations. The term service employee includes all such persons regardless of any contractual relationship that may be alleged to exist between a contractor or subcontractor and such persons. ________________________________________ •

COMPLAINT #12

    The contractor has failed to pay overtime wages to its inspectors as required under the act. ________________________________________ •

29 CFR 4.180 - Overtime pay--in general. Section Number: 4.180 Section Name: Overtime pay--in general. The Act does not provide for compensation of covered employees at premium rates for overtime hours of work. Section 6 recognizes, however, that other Federal laws may require such compensation to be paid to employees working on or in connection with contracts subject to the Act (see Sec. 4.181) and prescribes, for purposes of such laws, the manner in which fringe benefits furnished pursuant to the Act shall be treated in computing such overtime compensation as follows: ``In determining any overtime pay to which such service employees are entitled under any Federal law, the regular or basic hourly rate of such an employee shall not include any fringe benefit payments computed hereunder which are excluded from the regular rate under the Fair Labor Standards Act by provisions of section 7(d) [now section 7(e)] thereof.'' Fringe benefit payments which qualify for such exclusion are described in part 778, subpart C of this title. The interpretations there set forth will be applied in determining the overtime pay to which covered service employees are entitled under other Federal statutes. The effect of section 6 of the Act in situations where equivalent fringe benefits or cash payments are provided in lieu of the specified fringe benefits is stated in Sec. 4.177(e) of this part, and illustrated in Sec. 4.182. ________________________________________ •

COMPLAINT #13

    The contractor deploys inspectors to disaster sites and controls when they can leave by controlling the airline travel ticket. At the job site the inspector is responsible for all his expenses including hotel, food, lodging, phone, laundry, and automobile costs. Under the contractors service act the contractor is required to pay fringe benefits to its employees. Since all inspectors are being taken away from their home domicile, the contractor is responsible for providing reimbursement for hotel, food, lodging, phone, laundry, and automobile costs incurred by the inspector in the performance of his work assignment. ________________________________________ •

29 CFR 4.165 - Wage payments and fringe benefits--in general. Section Number: 4.165 Section Name: Wage payments and fringe benefits--in general. (a)(1) Monetary wages specified under the Act shall be paid to the employees to whom they are due promptly and in no event later than one pay period following the end of the pay period in which they are earned. No deduction, rebate, or refund is permitted, except as hereinafter stated. The same rules apply to cash payments authorized to be paid with the statutory monetary wages as equivalents of determined fringe benefits (see Sec. 4.177). (2) The Act makes no distinction, with respect to its compensation provisions, between temporary, part-time, and full-time employees, and the wage and fringe benefit determinations apply, in the absence of an express limitation, equally to all such service employees engaged in work subject to the Act's provisions. (See Sec. 4.176 regarding fringe benefit payments to temporary and part-time employees.) (b) The Act does not prescribe the length of the pay period. However, for purposes of administration of the Act, and to conform with practices required under other statutes that may be applicable to the employment, wages and hours worked must be calculated on the basis of a fixed and regularly recurring workweek of seven consecutive 24-hour workday periods, and the records must be kept on this basis. It is appropriate to use this workweek for the pay period. A bi-weekly or semimonthly, pay period may, however, be used if advance notification is given to the affected employees. A pay period longer than semimonthly is not recognized as appropriate for service employees and wage payments at greater intervals will not be considered as constituting proper payments in compliance with the Act. (c) The prevailing rate established by a wage determination under the Act is a minimum rate. A contractor is not precluded from paying wage rates in excess of those determined to be prevailing in the particular locality. Nor does the Act affect or require the changing of any provisions of union contracts specifying higher monetary wages or fringe benefits than those contained in an applicable determination. However, if an applicable wage determination contains a wage or fringe benefit provision for a class of service employees which is higher than that specified in an existing union agreement, the determination's provision must be observed for any work performed on a contract subject to that determination. ________________________________________ •

COMPLAINT #14

    Under the contractors payment method of paying the inspector on each completed inspections the rational for compliance with the act was that if each inspector is able to complete each inspection in less than one hour and the inspector is compensated at a per inspection rate that is higher than prevailing minimum wage then compliance is assured. In paying by this method the contractor has established a system for paying a higher per hourly rate for the actual inspection. What the contractor has failed to do is to pay the work that is required that is not part of the direct inspections. Items such as travel time between inspections, phone calls setting up the inspections, filling out form 90-69 and other work required to be done to be a FEMA Housing Inspector. The contractors belief was that compliance was achieved by averaging the hours out. The contractor believed that act compliance was achieved by virtue of it being impossible for it not to be in compliance, meaning that if an inspector was deployed for 30 days and was paid $20,000 dollars then compliance was automatically achieved. By doing the math at lets say $29.00 per hour, if the inspector worked for 30 days and made $20,000 then to be below the prevailing wage rate the inspector would have had to work 23 hours per day. The contractor according to the act is not allowed to average wages. The contractor has established a rate higher than the prevailing wage rate for inspections of the home by paying the inspector on a per inspection basis. The contractor has failed to pay the contractor for all the other hours put in that are ancillary to the inspection process, including days when the inspector received no inspections to do or when his equipment was broken down or for training, travel, and meeting times. Under the act each hour is stand alone and must be compensated separately. The contractor cannot reallocate higher pay rate that is paid for the inspection to hours that are spent working on non inspection duties. ________________________________________ •

29 CFR 4.166 - Wage payments--unit of payment. Section Number: 4.166 Section Name: Wage payments--unit of payment. The standard by which monetary wage payments are measured under the Act is the wage rate per hour. An hourly wage rate is not, however, the only unit for payment of wages that may be used for employees subject to the Act. Employees may be paid on a daily, weekly, or other time basis, or by piece or task rates, so long as the measure of work and compensation used, when translated or reduced by computation to an hourly basis each workweek, will provide a rate per hour that will fulfill the statutory requirement. Whatever system of payment is used, however, must ensure that each hour of work in performance of the contract is compensated at not less than the required minimum rate. Failure to pay for certain hours at the required rate cannot be transformed into compliance with the Act by reallocating portions of payments made for other hours which are in excess of the specified minimum. ________________________________________ •

COMPLAINT #15

   Records of hours worked by inspectors. The contractor has failed to keep hourly records to determine compliance with the contractor service act prevailing wage rate. As required by the act the contractor has failed to maintain any hourly records to verify minimum prevailing hourly wage rate is being complied with. ________________________________________ •

29 CFR 4.185 - Recordkeeping requirements. Section Number: 4.185 Section Name: Recordkeeping requirements. The records which a contractor or subcontractor is required to keep concerning employment of employees subject to the Act are specified in Sec. 4.6(g) of subpart A of this part. They are required to be maintained for 3 years from the completion of the work, and must be made available for inspection and transcription by authorized representatives of the Administrator. Such records must be kept for each service employee performing work under the contract, for each workweek during the performance of the contract. If the required records are not separately kept for the service employees performing on the contract, it will be presumed, in the absence of affirmative proof to the contrary, that all service employees in the department or establishment where the contract was performed were engaged in covered work during the period of performance. (See Sec. 4.179.) ________________________________________ •

29 CFR 4.178 - Computation of hours worked. Section Number: 4.178 Section Name: Computation of hours worked. Since employees subject to the Act are entitled to the minimum compensation specified under its provisions for each hour worked in performance of a covered contract, a computation of their hours worked in each workweek when such work under the contract is performed is essential. Determinations of hours worked will be made in accordance with the principles applied under the Fair Labor Standards Act as set forth in part 785 of this title which is incorporated herein by reference. In general, the hours worked by an employee include all periods in which the employee is suffered or permitted to work whether or not required to do so, and all time during which the employee is required to be on duty or to be on the employer's premises or to be at a prescribed workplace. The hours worked which are subject to the compensation provisions of the Act are those in which the employee is engaged in performing work on contracts subject to the Act. However, unless such hours are adequately segregated, as indicated in Sec. 4.179, compensation in accordance with the Act will be required for all hours of work in any workweek in which the employee performs any work in connection with the contract, in the absence of affirmative proof to the contrary that such work did not continue throughout the workweek. ________________________________________ •

COMPLAINT #16

    Failure to follow act notification procedures. The task order that the contractor requires the inspector to sign prior to working states that the inspector shall be responsible for compliance with the contractors service act wage determination as attached. The problem is that the contractor has never attached the contractors service act wage determination to the task order. The burden of compliance is placed upon the inspector however the inspector, by not being provided with the wage determination, has no method of calculating compliance. The inspector has no idea what the hourly rate is. To clarify this issue, the inspectors have never been given a copy of the wage determination and have no idea that a minimum hourly rate applies to the work they are performing. By virtue that each contractor is told they are an independent contractor and paid on a per inspection basis, all inspectors believe that the only compensation that they are entitled to is the rate paid for the completed inspection, no matter how long it takes them to do the inspection. The contractor has trained over 70,000 inspectors and never advised any of them of the minimum wage provisions of the act or provide them with a copy of the inspection contracts minimum wage determination. By virtue of the language in the task order, the contractor has placed the acts minimum wage compliance requirements on the inspector and never told the inspector what minimum wage he or she must comply with. Failure to provide each employee with a copy of the wage determination is a violation of the act itself. The contractors failure to provide it to the 70,000 + inspectors it has trained constitutes70,000 + individual violations of the act. The contractors failure to attach a copy of the wage determination to every task order, as the task order states is supposed to be attached, constitutes tens of thousands of additional individual violations of the act. ________________________________________ •

(e) The contractor and any subcontractor under this contract shall notify each service employee commencing work on this contract of the minimum monetary wage and any fringe benefits required to be paid pursuant to this contract, or shall post the wage determination attached to this contract. The poster provided by the Department of Labor (Publication WH 1313) shall be posted in a prominent and accessible place at the worksite. Failure to comply with this requirement is a violation of section 2(a)(4) of the Act and of this contract. ________________________________________ •

Complaint 17

   The Contractor has not paid Hazard pay to the Inspectors as required according to the FLSA. ________________________________________ •

Wages • Hazard Pay Hazard pay means additional pay for performing hazardous duty or work involving physical hardship. Work duty that causes extreme physical discomfort and distress which is not adequately alleviated by protective devices is deemed to impose a physical hardship. The Fair Labor Standards Act (FLSA) does not address the subject of hazard pay, except to require that it be included as part of a federal employee's regular rate of pay in computing the employee's overtime pay.

Further Request:
    Should the department of labor find violations of the act. It is hereby requested that the Department of Labor take action against the contractor pursuant to the provisions of. • 29 CFR 4.188 - Ineligibility for further contracts when violations occur. • 29 CFR 4.190 - Contract cancellation. ________________________________________

Parties involved

FEMA Contract Officer Helen Housand helen.housand@dhs.gov Contact Jennifer.Carr@dhs.gov if you need immediate assistance. Jennifer can be reached at 202-646-7923. ________________________________________ •

PB Corporate Headquarters • Parsons Brinckerhoff One Penn Plaza New York, NY 10119 • Hugh Ingles Inglish@pbworld.com • Phone 1800 411 1177
________________________________________ •

Professional Association of FEMA Inspectors •
848 n. Rainbow Blvd. #2080
Las Vegas, NV 89107-1103
• Phone 613 756-5001
www.FEMASbest.com
Chad@Femasbest.com
________________________________________

Attachments
• Task order to be requested from Parsons Brinkerhoff
• SS-8 IRS Determination

CC
Gordon S. Heddell,
Inspector General Daniel R. Petrole,
Deputy Inspector General
Office of Inspector General
200 Constitution Avenue, NW Room S-5502
Washington, DC 20210 Telephone: (202) 693-5100

The Honorable Chairman Joseph I. Lieberman
C706 Hart Office Building
Washington, DC 20510
(202) 224-4041 Voice (202) 224-9750 Fax

Homeland Security and Governmental Affairs
340 Dirksen Senate Office Building
Washington, D.C.
20510

Committee on Homeland Security and Governmental Affairs
United States Senate Washington, DC 20510

The Honorable Susan M. Collins Ranking Member Committee on Homeland Security and Governmental Affairs
United States Senate Washington, DC 20510 706
Hart Office Building Washington, DC 20510 (202) 224-4041 Voice (202) 224-9750 Fax

Floyd E. Stoner Executive Director Congressional Relations & Public Policy
Phone: 202-663-5339 Fax: 202-828-4548
fstoner@aba.com

Cynthia Fagnoni, Managing Director, Education Workforce and Income Security Issues,
(202) 512-7202, fagnoni@gao.gov.
Daniel Bertoni, Director, Education Workforce and Income Security Issues,
(202) 512-5988, bertonid@gao.gov.
U.S. Senator Daniel Kahikina Akaka United States Senate
141 Hart Senate Office Building Washington, D.C. 20510 Tel: (202) 224-6361 Fax: (202) 224-2126 ________________________________________
U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210 1-866-4-USA-DOL