A nearly $2 million settlement agreement with a California-based government contractor announced January 15, 2014 by the U.S. Department of Labor Wage and Hour Division (DOL) illustrates why U.S. businesses providing goods and services directly or as subcontractors to the federal government should use care to properly compensate workers and comply with other requirements applicable to government contractors.
Lesson From Lange Trucking Inc.
According to the DOL, Lange Trucking Inc. will pay $1,979,779 in 401(k) pension benefits to 515 drivers working on U.S. Postal Service contracts to resolve DOL charges that the company violated the McNamara-O’Hara Service Contract Act by not paying drivers required fringe benefits. The settlement also debars from eligibility for any further service contracts from any U.S. government agency for three years the company, along with its President, William A. Langenhuizen; Vice President, William H. Langenhuizen; Secretary Treasurer, Antoinette Langenhuizen; Vice President, Robert Langehuizen; and Vice President of Finance, Lisa Kulak. The Wage and Hour Division reported the settlement January 15, 2013 here.
The SCA applies to every contract entered into by the United States or the District of Columbia, the principal purpose of which is to furnish services in the United States through the use of service employees. The SCA requires that contractors and subcontractors performing services on covered federal contracts in excess of $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality.
DOL reports that Wage and Hour investigators found that Lange Trucking failed to fully fund the drivers’ 401(k) plan, resulting in a violation of the SCA. Wage and Hour has investigated the company several times in the past. Lange Trucking paid $500,000 of the unpaid benefits while Hoovestol Inc., which is based in Eagan, Minn., acquired the company subsequent to the violations and voluntarily agreed to fund the remaining $1.48 million in benefits. Hoovestol, which cooperated fully with the Wage and Hour Division during its investigation, has also: corrected record-keeping procedures, overhauled the plan to ensure timely payments into the plan going forward, posted wage determinations at the work site and made information about the contracts accessible to employees.
Audits and Enforcement Rising
Government contractors face rising risks of audit and enforcement of their compliance with federal contracting requirements. The Obama Administration has made audit and enforcement of compliance a lead priority.
The risk of audit generally affects all federal government contractors and subcontractors. However, contractors providing services on projects funded from the $787 billion of stimulus funding provided under the American Recovery and Reinvestment Act of 2009 (“ARRA”) signed into law by President Barack Obama in February, 2009 are even more at risk. ARRA-funded contracts are subject to special procedures under the Office of Federal Contract Compliance Programs (“OFCCP”) “Procedures for Scheduling and Conducting Compliance Evaluations of American Recovery and Reinvestment Act of 2009 (ARRA) Funded Contractors” issued July 7, 2009. See OFCCP Order No. ADM 0901/SEL the “ARRA Procedures”).
Businesses providing services or supplies on ARRA funded projects directly or as subcontractors be considered government contractors, required to comply with the equal employment opportunity requirements of Executive Order 11246, as amended (EO 11246); Section 503 of the Rehabilitation Act of 1973,as amended (Section 503); and the Vietnam Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (VEVRAA). OFCCP has made clear that it will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA.
Beyond the heightened risks of enforcement due to the Obama Administration’s emphasis, government contractors and subcontractors also need to use care to monitor and maintain compliance with evolving requirements. In some cases, such as in the case of ARRA-funded projects, the applicability and requirements have been expended to extend to businesses or projects that historically might have qualified as exempt from government contractor rules.
In addition, the rules themselves are evolving in response to the regulatory and enforcement activism of the Obama Administration. In recent years, for instance, the Obama Administration has made audit and enforcement of federal disability, veterans and other nondiscrimination, affirmative action and other laws and rules for government contractors and other employers. An example of these evolving rules is reflected in the recent posting by the OFCCP of a third round of Frequently Asked Questions (FAQs) answering questions from contractors and the general public about provisions in the recently published Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act (Section 503) Final Rules. These FAQs address implementation issues, such as the schedule for contractors to come into compliance with the affirmative action requirements of Subpart C of the new regulations.
In light of these developments, government contractors and subcontractors will want to review and verify their compliance with requirements as well as the adequacy of their recordkeeping and other documentation, as well as take other appropriate steps to manage their risks.
For Assistance or More Information
If you have questions or need help with these or employee benefit, human resources, insurance, health care matters or related documents or practices, please contact the author of this update, Cynthia Marcotte Stamer.
A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 25 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters.
A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals. A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials about regulatory, investigatory or enforcement concerns.
Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, HR.com, Insurance Thought Leadership, Solutions Law Press, Inc. and other publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations. She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications. Her widely respected publications and programs include more than 25 years of publications on health plan contracting, design, administration and risk management including a “Managed Care Contracting Guide” published by the American Health Lawyers Association and numerous other works on vendor contracting. You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.
Other Helpful Resources & Other Information
We hope that this information is useful to you. If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here . You also can get access to information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,” using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can reach other recent updates and other informative publications and resources.
Recent examples of these publications include:
- Rules For Reporting ACA Health Insurance Provider Information Are Out
- IRS: Insurers Taxed On ACA Annual Fee Assessments Collected From Customers
- 2013 Cumulative List of Plan Plan Qualification Requirements Helpful Resource To Monitor Plan Updates
- IRS Gives Temporary Nondiscrimination Relief For Closed Defined Benefit Plans
- New IRS Guidance On Claiming Small Business Health Care Tax Credit When No SHOP Enrollment Option
- IRS Updates, Supplements Cafeteria Plan & HSA Post-Windsor Same-Sex Participant Guidance
- IRS Published Covered Compensation Table For 2014
- IRS Publishes Interest Rates For Calculating Insurer Reserves Under IRC Section 807
- J.P. Morgan Chase Hit For $461M For Madoff-Related Bank Secrecy Act Violations
- Dermatology Practice To Pay $150K To Settle Charges It Breached HIPAA Breach Notice Rule
- OFCCP Posts Additional FAQs on the Implementation of the VEVRAA and Section 503 Final Rules
- Employer Faces $2M FLSA Lawsuit For Alleged Worker Misclassification
- OIG 2013 Top Management Challenges List Signals Tightening of Labor Department Enforcement
- US Labor Department Seeks $300K+ Whistleblower Recovery Against Employer For Firing Worker
- Careful Selection & Contracting With Vendors Critical Part of Health Plan Renewals
- Exchange Enrollment Kicks Off Plagued By Government Shutdown, Other Challenges
- Keeping Dementia Patients At Home: New Study Gives Tips
- PBGC Benefit Recipients Health Coverage Tax Credit Eligibility Expires 12/31/13
- HHS Announces $50M In Affordable Care Act Community Health Center Mental Health Services Funding
- Insist President & Congress Get Real About Health Care Reform
- Logon & Password Creation For Personal Accounts Lend Significance To Consumer Security Concerns About Using HHS Health Insurance Exchange Portal
- Affordable Care Act Requires Proper Integration of HRAs, HFSAs, & Certain Other Health Premium Reimbursement Arrangements
- Review Benefit Plan, FLMA & Other Family-Related Policies In Light Of Labor Department Same-Sex Marriage Guidance
- Bank Of American Ordered To Pay $2M+ For Race Discriminatory Hiring
- New Final FLSA Rule Gives Home Workers Minimum Wage, Overtime, Other FLSA Protections
- HHS Share Model HIPAA Notices 1 Week Before Deadline For Updating Business Associate Agreements
- CMS Hosts Webinar Celebrating National Health IT Week 9/16-20
- New DOL Guidance Makes Many Employers Rethink Giving FLSA 18B Exchange Notices
- Tell HHS What You Think About Obamacare & Other Rules
- Insist President & Congress Get Real About Health Care Reform
- Employers Beware! DOL-Model FLSA Section 18B Exchange Notice Requires Tailoring!
- IRS Publishes Final Health Reform Individual Shared Responsibility Rules
- Cascom Inc. Owner Must Pay Nearly $1.5 M After Company Misclassified Employees As Independent Contractors
- Government Contractors To Face Hiring “Targets” for Vets & Disabled Under Impending Rules.
- Impending 10/1 Exchange Notice & Other New Notice Deadlines Cut Time Short For Employers To Finalize 2014 Health Plan Terms & Contracts
- Businesses Urged To Strengthen Their Worker Classification Defenses As IRS, Other Agencies Step Up Audits & Enforcement
- 13 Employer Tips For Coping With Health Care Reform Now!
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©2013 Cynthia Marcotte Stamer. Nonexclusive right to republish granted to Solutions Law Press, Inc. All other rights reserved.
Other Information & Resources
You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.
©2009 Cynthia Marcotte Stamer. All rights reserved.