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U.S. Department of Labor Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210
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Date: November 12, 2004

Mr. Gregory M. Noonan
Contractor Industrial Relations Specialist
Office of the Chief Counsel, CECC-L
U.S. Army Corps of Engineers
441 G Street N.W. (3A31)
Washington, D.C. 20314-1000

Mr. Gerald Yakowenko, P.E.
Contract Administration Group
Office of Program Administration, HIPA-30
Federal Highway Administration
Room 3134
400 7th Street, SW
Washington, DC 20590

Re: Electronic Signatures and the Copeland Act

Dear Sirs:

I am writing in response to your inquiry concerning the use of electronic signatures on documents submitted to satisfy the requirements of the Copeland Act and its regulations, at 29 CFR 3.3 and Part 5. Current law establishes that the proper use of electronic signatures on certified payrolls and related compliance statements satisfies the requirements of the Copeland Act and its implementing regulations. Those signatures carry the same legal effect as handwritten signatures. The discussion below outlines the statutory and regulatory requirements in question, including record retention, and the use of electronic signatures to satisfy those requirements. Additionally, the addresses of several of the Office of Management and Budget's websites are provided to assist in ensuring the highest possible level of accuracy, efficiency and security when compliance documents are submitted and received electronically.

Copeland Act

The Copeland Act prohibits inducing

by force, intimidation, threat of procuring dismissal from employment, or otherwise, any person employed in the construction or repair of public buildings or public works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. (18 U.S.C. 874)

Section 2 of the Copeland Act further requires "each contractor and subcontractor to furnish a weekly statement with respect to the wages paid each employee during the preceding week." (40 U.S.C. 3145 (a) ; formerly 40 USC 276(c)).

The statute's implementing regulations provide, in relevant part, that each covered contractor or subcontractor

shall furnish each week a statement with respect to the wages paid each of its employees engaged on [covered] work... during the preceding weekly payroll period. This statement shall be executed by the contractor or subcontractor or by an authorized officer or employee of the contractor or subcontractor who supervises the payment of wages, and shall be on form WH 348, "Statement of Compliance", or on an identical form on the back of WH 347, "Payroll (For Contractors Optional Use)" or on any form with identical wording. (29 CFR 3.3(b))

See also 29 CFR 5.5(a)(3)(ii)(A) (requiring regular submission of payroll copies to the appropriate federal agency). The regulations further specify as follows:

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. [1] 29 CFR 5.5 (a) (3) (ii) (B) (emphasis added).

While the Copeland Act does not require that the "weekly statement" be signed, the implementing regulations do require a signed "statement of compliance." However, the regulations do not specify that the signature should be "handwritten." In addition, Wage and Hour's Form WH-347 also does not contain any language prohibiting electronic signing. See 29 CFR 5.5(a)(3)(ii)(C) (authorizing the use of Form WH-347 to satisfy the "statement of compliance" requirement). Furthermore, the Department is aware of no decision by the Administrative Review Board or any federal court addressing the issue of whether the Copeland Act requires a handwritten signature on the contractor's compliance statement. Thus, there is nothing in the Copeland Act, its implementing regulations, or the caselaw expressly prohibiting the use of electronic signatures as a valid means of compliance with the Copeland Act's reporting requirements.

Supporting Legislation

Recent legislation authorizes and directs federal agencies to accept the use of electronic signatures. Government regulatory and enforcement activities, such as those under the Davis-Bacon and Related Acts, are generally subject to the Government Paperwork Elimination Act (GPEA), Pub. L. 105-277, 112 Stat. 2681 (1998) (codified at 44 U.S.C. 3504, note), which requires, when practicable, that Federal agencies use electronic forms, electronic filing, and electronic signatures to conduct official business with the public. In section 1707, the GPEA states, in relevant part, that

[e]lectronic records submitted or maintained in accordance with procedures developed under this title... or electronic signatures or other forms of electronic authorization used in accordance with such procedures, shall not be denied legal effect, validity, or enforceability because such records are in electronic form. (44 U.S.C. 3504, note.)

Additionally, the Electronic Signatures in Global and National Commerce Act (E-Sign Act), Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. 7001, et seq.), which applies to commercial transactions between the Government and private entities, similarly provides that

a signature, contract or other record... may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and... a contract... may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. (15 U.S.C. 7001(a)(1) and (2) )

In support of these laws, the Office of Management and Budget (OMB) offers extensive guidance to assist federal agencies in the use of electronic forms, filing, and signatures with which to conduct official business. See e.g., http://www.whitehouse.gov/omb/fedreg/gpea2.html (OMB guidance to agencies on implementing GPEA); http://www.whitehouse.gov/omb/memoranda/m00-10.html (same); http://www.whitehouse.gov/omb/memoranda/esign-guidance.pdf (pdf) (OMB guidance on E-Sign Act); http://www.whitehouse.gov/omb/memoranda/m00-15.html (same).

Record Retention

While the implementation of systems with which to accept electronic records has been largely left to the discretion of the federal agency, for purposes of the Copeland Act and the Davis-Bacon and Related Acts, agencies should be reminded that, in accordance with the Reorganization Plan No. 14 of 1950, reprinted in 5 USC Appendix, and in 64 Stat. 1267, they continue to act as the first level of enforcing authority for ensuring that appropriate records are maintained by the contractor and the employees are compensated in accordance with the Davis-Bacon Act. See 29 CFR 5.6. Moreover, because the use of such records may be required for litigation purposes, a reliable means of retrieving compliance documents collected and stored electronically should be included in any such methodology or arrangement.

In addition to filing requirements, contractors continue to have an obligation to retain records. The regulations state that: "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... ." 29 CFR 5.5(a)(3)(i). 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 equivalents thereof . . .), daily and weekly number of hours worked, deductions made and actual wages paid. Id. The use of electronic signatures in no way negates the record keeping requirements and responsibilities outlined above.

Conclusion

Pursuant to the pertinent provisions of the Copeland Act and the GPEA, described above, accurate electronic signatures are sufficient for compliance purposes under the Copeland Act. However, all parties are reminded of the responsibility to ensure the accuracy of the electronic signature process, and the proper retention and accessibility of the resulting electronically transmitted documents. For any further questions or concerns on this subject, please contact Timothy Helm, Team Leader, Office of Enforcement Policy, Government Contracts Team. He can be reached on 202-693-0574.

Sincerely,

/s/ signed by
Alfred B. Robinson, Jr.
Acting Administrator

cc:
Richard E. DeHority, President, eMars, Inc.
W Allen Koehn,UNISYS Corporation
Ranjit Chakravorti, PH.D.,P.E.,President, TRS Consultants, Inc.
Rick Shi, Elation Systems


Footnotes

[1] The signed compliance statement must provide the following certifications:

  1. That the payroll for the payroll period contains the information required... and that such information is correct and complete;
  2. That each laborer or mechanic... 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 Regulations, 29 CFR Part 3;
  3. That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

29 CFR 5. 5 (a) (3) (ii) (B) (1) - (3).

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