29 C.F.R. § 5.10

Restitution, criminal action

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(a) In cases other than those forwarded to the Attorney General of the United States under paragraph (b) of this section where violations of the labor standards clauses contained in § 5.5 and the applicable statutes referenced by § 5.1 result in underpayment of wages to workers or monetary damages caused by violations of § 5.5(a)(11) or (b)(5), the Federal agency or an authorized representative of the Department of Labor will request that restitution be made to such workers or on their behalf to plans, funds, or programs for any type of bona fide fringe benefits within the meaning of 40 U.S.C. 3141(2)(B), including interest from the date of the underpayment or loss. Interest on any back wages or monetary relief provided for in this part will be calculated using the percentage established for the underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

(b) In cases where the Agency Head or the Administrator finds substantial evidence that such violations are willful and in violation of a criminal statute, the matter will be forwarded to the Attorney General of the United States for prosecution if the facts warrant. In all such cases the Administrator will be informed simultaneously of the action taken.

[88 FR 57741, Aug. 23, 2023]

Notes of Decisions

Cited in 3 cases, 1976–2003 · leading case: Found. for Fair Contracting, Ltd. v. G & M E. CONTRACTING & DOUBLE E, LLC, 259 F. Supp. 2d 329 (D.N.J. 2003).

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Found. for Fair Contracting, Ltd. v. G & M E. CONTRACTING & DOUBLE E, LLC, 259 F. Supp. 2d 329 (D.N.J. 2003). “refer the matter for restitutionary measures, or to criminal action if the violations are willful and in violation of a criminal statute, see 29 C.F.R. § 5.10 , and it may institute debarment proceedings under 29 C.”

Bodrick v. Mayfair Constr. Corp., 346 N.E.2d 820 (NY 1976). · cites it 2× “, 29 CFR 5.10). There being no exclusive administrative remedy prescribed therein, the aggrieved employees were empowered to enforce, by private litigation, the benefits afforded them under the National Housing Act, as set forth in section 1701 et seq.”

Stanley E. Coutu v. Universities Rsch. Ass'n, Inc., 595 F.2d 396 (7th Cir. 1979). “Finally, the regulations provide that “[t]he Agency Head may, in appropriate cases * * request that restitution be made * * ( 29 C.F.R. § 5.10 .) Apart from the fact that the precatory language of this regulation gives employees no sure means of redress, this would not seem to…”

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