Federal Lands Permits and Minimum Wage Issues - Important Update

December 18, 2015
Campers hiking in National Park

On December 18, 2015, President Barack Obama signed the Omnibus federal spending bill — HR 2029 containing a provision to defund the implementation and enforcement of the President’s 2014 Executive Order 13658. The Executive Order established a minimum wage for contractors of $10.10 for workers on Federal construction and service contracts.

While American Camp Association (ACA) analysis of the Executive Order concluded that the majority of camps with Outfitter Guide permits to use public lands were not impacted by the Executive Order, some federal officials in select areas of the country informed camps that they would need to comply.

This new provision serves as a stop gap to implementation and enforcement until such time as a permanent change in law is made to bring clarity to the issue. Camps can expect that in 2016, new contracts will not include the language contained in the Executive Order. As always, camps must comply with all other applicable labor laws.

Details

Omnibus Bill HR2026 – Signed into law on December 18, 2015

   Page 885, Line 16

      DIVISION H—DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS ACT, 2016

SEC. 110. None of the funds made available by this Act may be used to implement, administer, or enforce the Establishing a Minimum Wage for Contractors regulation published by the Department of Labor in the Federal Register on October 7, 2014 (79 Fed. Reg. 60634 et seq.), with respect to Federal contracts, permits, or other contract-like instruments entered into with the Federal Government in connection with Federal property or lands, specifically related to offering seasonal recreational services or seasonal recreation equipment rental for the general public: Provided, that this section shall not apply to lodging and food services associated with seasonal recreation services.

Background

President Barack Obama issued Executive Order 13658 on February 12, 2014 — “Establishing a minimum wage for contractors” to raise the minimum wage to $10.10 for workers on Federal construction and service contracts. Subsequently, the US Department of Labor, Wage and Hour Division, released a Fact Sheet: Final Rule to Implement Executive Order 13658.  Furthermore, a Guidance Document was submitted into the Federal Register on October 7, 2014.

The Fact Sheet on the Final Rule to Implement Executive Order 13658 expressly described workers “that are not covered by the Executive Order and the final rule” to be:

The Executive Order and the final rule contain a few limited exclusions from coverage for certain workers. For example, workers who are employed in a bona fide executive, administrative, or professional capacity and who consequently are exempt from the FLSA’s minimum wage and overtime requirements are not entitled to receive the Executive Order minimum wage. FLSA-covered workers performing “in connection with” covered contracts are also excluded from coverage of the Executive Order if they spend less than 20% of their work hours in a particular workweek performing in connection with covered contracts.

Thus, for camp programs:

  • All camp employees who are employed in a bona fide executive, administrative, or professional capacity and who consequently are exempt from the FLSA’s minimum wage and overtime requirements are not included in this Executive Order.
  • All camp employees who spend less than 20% of their work hours in a particular workweek performing in connection with a “covered contract” are not included in this Executive Order. 

On October 7, 2014, the Department of Labor issued guidance on the final rule. Contained within is language that makes clear that the seasonal exemption is still applicable:

  • The Department’s proposed rule did not contain a general exclusion for seasonal workers or students. However, except with respect to workers who are otherwise covered by the SCA or the DBA, the proposed rule stated that this part does not apply to employees who are not entitled to the minimum wage set forth at 29 U.S.C. 206(a)(1) of the FLSA pursuant to 29 U.S.C. 213(a) and 214(a)–(b). Pursuant to this exclusion, the Executive Order does not apply to full-time students whose wages are calculated pursuant to special certificates issued under section 14(b) of the FLSA, unless they are otherwise covered by the DBA or SCA. The exclusion would also apply to employees employed by certain seasonal and recreational establishments pursuant to 29 U.S.C. 213(a)(3).

Resources and References

Photo courtesy of Sanborn Western Camps, Florissant, CO