29 C.F.R. § 4.170

Furnishing fringe benefits or equivalents

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(a) General. Fringe benefits required under the Act shall be furnished, separate from and in addition to the specified monetary wages, by the contractor or subcontractor to the employees engaged in performance of the contract, as specified in the determination of the Secretary or his authorized representative and prescribed in the contract documents. Section 2(a)(2) of the Act provides that the obligation to furnish the specified benefits “may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or differential payments in cash under rules and regulations established by the Secretary.” The governing rules and regulations for furnishing such equivalents are set forth in § 4.177 of this subpart. An employer cannot offset an amount of monetary wages paid in excess of the wages required under the determination in order to satisfy his fringe benefit obligations under the Act, and must keep appropriate records separately showing amounts paid for wages and amounts paid for fringe benefits.

(b) Meeting the requirement, in general. The various fringe benefits listed in the Act and in § 4.162(a) are illustrative of those which may be found to be prevailing for service employees in a particular locality. The benefits which an employer will be required to furnish employees performing on a particular contract will be specified in the contract documents. A contractor may dispose of certain of the fringe benefit obligations which may be required by an applicable fringe benefit determination, such as pension, retirement, or health insurance, by irrevocably paying the specified contributions for fringe benefits to an independent trustee or other third person pursuant to an existing “bona fide” fund, plan, or program on behalf of employees engaged in work subject to the Act's provisions. Where such a plan or fund does not exist, a contractor must discharge his obligation relating to fringe benefits by furnishing either an equivalent combination of “bona fide” fringe benefits or by making equivalent payments in cash to the employee, in accordance with the regulations in § 4.177.

Notes of Decisions

Cited in 4 cases (2 in the last 5 years), 1972–2022 · leading case: Holstad v. United States Dep't of Labor (D. Minnesota 2021).

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Holstad v. United States Dep't of Labor (D. Minnesota 2021). · cites it 3× “” 29 C.F.R. § 4.170 (a). Further, “[a]n employer cannot offset an amount of monetary wages paid in excess of the wages required under the [wage] determination in order to satisfy his fringe benefit obligations under the Act, and must keep appropriate records separately showing…”

White Glove Bldg. Maint., Inc. v. Hodgson, 459 F.2d 175 (9th Cir. 1972). “Indeed, 29 C.F.R. § 4.170 (b) suggests the contrary: «* * * Where such a [third-party insurance] plan or [trustee] fund does not exist, a contractor must discharge his obligation relating to fringe benefits by furnishing either an equivalent combination of bona fide fringe…”

Agma Sec. Serv., Inc. v. United States (Fed. Cl. 2022). “§§ 6702–03; 29 C.F.R. §§ 4.170 , 4.175. At the same time, AGMA explains, Puerto Rico law “requires employers to pay a Christmas bonus .”

Baldisserotto v. State Emp. Sec. Dep't, 507 P.2d 891 (Wash. Ct. App. 1973). “) 29 C.F.R. § 4.170 (1972). The contract between the port and the United States is not in evidence.”

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