Chapter 12-300: University Compliance

The following sections address University compliance with the requirements discussed above in Sections 12-200ff.

12-310 Fair Labor Standards Act

The Office of the President, Office of Employee and Labor Relations, is responsible for making sure that University personnel policies and procedures comply with the FLSA. That office has indicated that the University does pay at least minimum wage to all non-exempt employees and that University personnel and payroll recordkeeping systems meet the recordkeeping standards of the Act.

University employees who are subject to the provisions of the Fair Labor Standards Act are called non-exempt employees and employees not subject to the Act are called exempt employees. Non-exempt employees must be paid for work over 40 hours of actual work in a workweek at one and one-half times their regular rate of pay.

Exemption status for staff titles is found in the Staff Title and Pay Plan, located in department or local staff personnel offices. Non-exempt pay titles are marked N after the heading OES (Overtime Exemption Status). OES codes A, E, G, P and S indicate exempt pay titles.

There are no specific clauses or assurances pertaining to the FLSA required to be inserted in solicitations or subawards made under Federally funded contracts and grants.

12-320 Davis-Bacon Act

The Office of the President, Office of Facilities Administration, is responsible for making sure that University policies and standard form contract language comply with the Davis-Bacon Act. The Facilities Manual, Text, Section C-1.13, is being revised to contain boilerplate language for use in Federally funded construction contracts awarded by the University and that contain a prevailing wage determination as an attachment to the contract.

Since the University is not in the construction business, it is unlikely to be awarded a prime construction contract by a Federal agency. However, the University does occasionally receive a Federal research grant under which the University may contract out for the construction, alteration, or repair of buildings. When these construction agreements are in excess of $2,000, the provisions of the Davis-Bacon Act must be applied to the contractor doing the work.

Although the University has a number of pay titles that would include "laborers and mechanics," the Davis-Bacon Act would not apply to these employees when construction is incidental to the performance of the award. The Davis-Bacon Act would apply if these employees are paid for work done under a Federal award to the University which is expressly for construction.

Contracts that contain FAR clause 52.222-6 or otherwise are subject to the provisions of Davis-Bacon must contain wage determinations specific to that agreement, usually obtained from the Contracting Officer or grants administrator, who in turn has the option to use the applicable published wage determination, if there is one, or to request a specific determination from the U.S. Department of Labor using Standard form 308. A listing of the applicable prevailing rates must be prominently displayed at the work site.

Determinations of the prevailing wage for particular types of construction within specified geographical areas are published as needed in the Federal Register by the U.S. Department of Commerce, Wage and Hour Division. They also are published weekly by the Government Printing Office in its publication "General Wage Determinations Issued Under the Davis-Bacon and Related Acts." This publication is available from the GPO (Washington, DC 20402) or in most Government Depository Libraries (including main libraries at all University campuses except San Francisco).

Based on a sample comparison of University of California wage rates and Federal rates, the two appear to be in substantial agreement. The University, for example, in 1992 paid a painter at the Berkeley campus $22.12 per hour (title 8198) and the Federal prevailing wage for that category in Alameda County for the same period was $21.47. For plumbers-pipefitters (title 8191) the University wage was $23.05 in Berkeley in 1992, and the comparable Federal rate was $21.88. If "laborers or mechanics" are charged to a Federal construction award, compliance with prevailing wage rates may be determined by comparing the University wage rate to the Federal prevailing wage rate for the applicable labor category.

12-330 Contract Work HOurs and Safety Standards Act

In general, with respect to its own employees, the University complies with the provisions of this Act in virtue of its compliance with the broader provisions of the Fair Labor Standards Act (see 12-310). For information on how the University ensures that the provisions of the Act are flowed down to subcontractors under Federal contracts and grants, see 12-242 and 12-252, above.

12-340 Service Contract Act

The primary responsibility for judging if a contract falls under the provisions of the Service Contract Act, and if a particular contract which does fall within such provisions is acceptable to the University, rests with Contract and Grant Officers.

If the University should enter into a contract subject to the provisions of the Service Contract Act, it is the primary responsibility of the hiring department in consultation with the department's Employee Relations Specialist to ensure that the University complies with the provisions of the Act. If, for example, all University employees to be paid under the contract are "non-exempt" (see 12-310), paid bi-weekly, and eligible for full University benefits, then the only question would be whether the wages paid meet the "prevailing wage" standards for each funded position. The prevailing wages for each location and type of work should be specified in the contract (or in an attachment to the contract) by the Contracting Officer. See 12-320 for details on how to obtain information on general wage determinations, which would give a rough idea of the applicable prevailing wages.

It is the University's usual practice not to enter into a contract which falls within the provisions of the Service Contract Act because the University's payroll and personnel systems and policies have not been written specifically to be in compliance with all the provisions of the Act, particularly the "prevailing wage" standard. The administrative burden required to determine in a particular case whether the University is in compliance, and will continue to be in compliance throughout the life of the contract, could be great. Acceptance of Service Contract Act requirements may be considered by Contract and Grant Officers on a case-by-case basis, taking into account the value of a project to the University vs. the administrative burden and costs the contract would impose.

Service contracts awarded by the University that are subject to Federal prevailing wage requirements are to be administered in accordance with Business and Finance Bulletin BUS-43, Part 3.

12-350 Walsh-Healey Public Contracts Act

Since the University is not a manufacturer or regular dealer of materials, supplies, or equipment, the Act does not apply to University employees. Contract and Grant Officers should ensure that references to the Walsh-Healey Act are not accepted, or are made not applicable to the University, in extramurally-funded contracts.

12-360 Hatch Act

When asked to certify compliance with the Hatch Act, Contract and Grant Officers may rely on the statutory exemption for educational institutions to indicate to the sponsoring agency that the Hatch Act is not applicable to the University. In the unlikely event that a sponsor questions this exemption on the grounds that certain individuals budgeted to work on the proposed project are State employees and technically not "employees of the University," then advice should be sought from the Office of the General Counsel and Vice President for Legal Affairs.

12-370 Drug-Free Workplace Act

The Assistant Vice President--Employee and Labor Relations is primarily responsible for developing the University policy on substance abuse and for issuing implementing guidelines. (See University of California Policy on Substance Abuse, November 1, 1990, and Implementing Guidelines for the University of California Policy on Substance Abuse, December 10, 1990.)

Chancellors and Laboratory Directors are responsible for issuing instructions for implementing the provisions of the University policy on substance abuse. Generally the campus or Laboratory Contract and Grant Officer is the designated official to sign certifications required in proposals and applications for Federal awards.

Guidance and background materials regarding the Drug-Free Workplace Act are disseminated via Contract and Grant Memo and Information Letter.

12-380 Drug-Free Schools and Communities Act

The Assistant Vice President--Employee and Labor Relations is primarily responsible for developing the University policy on substance abuse and for issuing implementing guidelines. (See University of California Policy on Substance Abuse, November 1, 1990, and Implementing Guidelines for the University of California Policy on Substance Abuse, December 10, 1990.)

Chancellors and Laboratory Directors are responsible for issuing instructions for implementing the provisions of the University policy on substance abuse. Certification of compliance with the Drug-Free Schools and Communities Act is required on a one-time only basis and has been submitted by each campus to the U.S. Department of Education.

Guidance and background materials regarding the Drug-Free Schools and Communities Act are disseminated via Contract and Grant Memo and Information Letter.