[Federal Register Volume 86, Number 177 (Thursday, September 16, 2021)]
[Notices]
[Pages 51683-51685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19995]


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DEPARTMENT OF LABOR

Wage and Hour Division


Minimum Wage for Federal Contracts Covered by Executive Order 
13658, Notice of Rate Change in Effect as of January 1, 2022

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Notice.

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SUMMARY: The Wage and Hour Division (WHD) of the U.S. Department of 
Labor (the Department) is issuing this notice to announce the 
applicable minimum wage rate for workers performing work on or in 
connection with federal contracts covered by Executive Order 13658, 
Establishing a Minimum Wage for Contractors (the Executive Order or the 
Order), beginning January 1, 2022. Beginning on that date, the 
Executive Order 13658 minimum wage rate that generally must be paid to 
workers performing work on or in connection with covered contracts will 
increase to $11.25 per hour, while the required minimum cash wage that 
generally must be paid to tipped employees performing work on or in 
connection with covered contracts will increase to $7.90 per hour. 
Covered contracts that are entered into on or after January 30, 2022, 
or that are renewed or extended (pursuant to an option or otherwise) on 
or after January 30, 2022, will be generally subject to a higher $15.00 
minimum wage rate established by Executive Order 14026 of April 27, 
2021, Increasing the Minimum Wage for Federal Contractors.

DATES: These new Executive Order 13658 rates shall take effect on 
January 1, 2022.

FOR FURTHER INFORMATION CONTACT: Amy DeBisschop, Director, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, 
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this notice may be obtained in alternative 
formats (Large Print, Braille, Audio Tape, or Disc), upon request, by 
calling (202) 693-0023 (not a toll-free number). TTY/TTD callers may 
dial toll-free (877) 889-5627 to obtain information or request 
materials in alternative formats.

SUPPLEMENTARY INFORMATION:

I. Executive Order 13658 Background and Requirements for Determining 
Annual Increases to the Minimum Wage Rate

    Executive Order 13658 was signed on February 12, 2014, and raised 
the hourly minimum wage for workers performing work on or in connection 
with covered federal contracts to $10.10 per hour, beginning January 1, 
2015, with annual adjustments thereafter in an amount determined by the 
Secretary pursuant to the Order. See 79 FR 9851. The Executive Order 
directed the Secretary to issue regulations to implement the Order's 
requirements. See 79 FR 9852. Accordingly, after engaging in notice-
and-comment rulemaking, the Department published a Final Rule on 
October 7, 2014 to implement the Executive Order. See 79 FR 60634. The 
final regulations, set forth at 29 CFR part 10, established standards 
and procedures for implementing and enforcing the minimum wage 
protections of the Order.
    Executive Order 13658 and its implementing regulations require the 
Secretary to determine the applicable minimum wage rate for workers 
performing work on or in connection with covered contracts on an annual 
basis, beginning January 1, 2016. See 79 FR 9851; 29 CFR 10.1(a)(2), 
10.5(a)(2), 10.12(a). Sections 2(a) and (b) of the Order establish the 
methodology that the Secretary must use to determine the annual 
inflation-based increases to the minimum wage rate. See 79 FR 9851. 
These provisions, which are implemented in 29 CFR 10.5(b)(2), explain 
that the applicable minimum wage determined by the Secretary for each 
calendar year shall be:
     Not less than the amount in effect on the date of such 
determination;
     Increased from such amount by the annual percentage 
increase in the Consumer Price Index for Urban Wage Earners and 
Clerical Workers (CPI-W) (United States city average, all items, not 
seasonally adjusted), or its successor publication, as determined by 
the Bureau of Labor Statistics (BLS); and
     Rounded to the nearest multiple of $0.05.
    Section 2(b) of Executive Order 13658 further provides that, in 
calculating the annual percentage increase in the CPI-W for purposes of 
determining the new minimum wage rate, the Secretary shall compare such 
CPI-W for the most recent month, quarter, or year available (as 
selected by the Secretary prior to the first year for which a minimum 
wage is in effect) with the CPI-W for the same month in the preceding 
year, the same quarter in the preceding year, or the preceding year, 
respectively. See 79 FR 9851. To calculate the annual percentage 
increase in the CPI-W, the Department elected in its Final Rule 
implementing the Executive Order to compare such CPI-W for the most 
recent year available with the CPI-W for

[[Page 51684]]

the preceding year. See 29 CFR 10.5(b)(2)(iii). In its Final Rule, the 
Department explained that it decided to compare the CPI-W for the most 
recent year available (instead of using the most recent month or 
quarter, as allowed by the Order) with the CPI-W for the preceding 
year, ``to minimize the impact of seasonal fluctuations on the 
Executive Order minimum wage rate.'' 79 FR 60666.
    Once a determination has been made with respect to the new minimum 
wage rate, Executive Order 13658 and its implementing regulations 
require the Secretary to notify the public of the applicable minimum 
wage rate on an annual basis at least 90 days before any new minimum 
wage takes effect. See 79 FR 9851; 29 CFR 10.5(a)(2), 10.12(c)(1). The 
regulations explain that the Administrator of the Department's Wage and 
Hour Division (the Administrator) will publish an annual notice in the 
Federal Register stating the applicable minimum wage rate at least 90 
days before any new minimum wage takes effect. See 29 CFR 
10.12(c)(2)(i). Additionally, the regulations state that the 
Administrator will provide notice of the Executive Order minimum wage 
rate on Wage Determinations OnLine (WDOL), http://www.wdol.gov, or any 
successor site; \1\ on all wage determinations issued under the Davis-
Bacon Act (DBA), 40 U.S.C. 3141 et seq., and the Service Contract Act 
(SCA), 41 U.S.C. 6701 et seq.; and by other means the Administrator 
deems appropriate. See 29 CFR 10.12(c)(2)(ii)-(iv).
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    \1\ WDOL.gov moved to https://alpha.sam.gov/content/wage-determinations. This website is the authoritative and single 
location for obtaining appropriate Service Contract Act and Davis-
Bacon Act wage determinations for each official contract action.
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    Section 3 of Executive Order 13658 requires contractors to pay 
tipped employees covered by the Order performing on or in connection 
with covered contracts an hourly cash wage of at least $4.90, beginning 
on January 1, 2015, provided the employees receive sufficient tips to 
equal the Executive Order minimum wage rate under section 2 of the 
Order when combined with the cash wage. See 79 FR 9851-52; 29 CFR 
10.28(a). The Order further provides that, in each succeeding year, 
beginning January 1, 2016, the required cash wage must increase by 
$0.95 (or a lesser amount if necessary) until it reaches 70 percent of 
the Executive Order minimum wage. Id. For subsequent years, the cash 
wage for tipped employees will be 70 percent of the Executive Order 
minimum wage rounded to the nearest $0.05. Id. When a contractor is 
using a tip credit to meet a portion of its wage obligations under the 
Executive Order, the amount of tips received by the employee must equal 
at least the difference between the cash wage paid and the Executive 
Order minimum wage; if the employee does not receive sufficient tips, 
the contractor must increase the cash wage paid so that the cash wage 
in combination with the tips received equals the Executive Order 
minimum wage. Id.
    The Executive Order 13658 minimum wage and the cash wage required 
for tipped employees are currently $10.95 and $7.65 per hour, 
respectively. The Department announced these rates on August 31, 2020, 
85 FR 53850, and the rates took effect on January 1, 2021.

II. Effect of Executive Order 14026

    On April 27, 2021, President Joseph R. Biden, Jr. signed Executive 
Order 14026, Increasing the Minimum Wage for Federal Contractors. 86 FR 
22835. Beginning January 30, 2022, Executive Order 14026 establishes a 
$15.00 hourly minimum wage for the same types of contracts with the 
Federal Government that are covered by Executive Order 13658. However, 
Executive Order 14026 only applies to contracts with the Federal 
Government that are entered into on or after January 30, 2022, or that 
are renewed or extended (pursuant to an exercised option or otherwise) 
on or after January 30, 2022. For some amount of time, the Department 
therefore anticipates that there will be some existing contracts with 
the Federal Government that do not qualify as a covered ``new 
contract'' for purposes of Executive Order 14026 and thus will remain 
subject to the minimum wage requirements of Executive Order 13658.
    The Department anticipates that, in the relatively near future, 
essentially all covered contracts with the Federal Government will 
qualify as ``new'' contracts under Executive Order 14026 and be subject 
to its higher minimum wage rate. Until such time, however, Executive 
Order 13658 and its regulations at 29 CFR part 10 must remain in place. 
The Department will continue announcing annual updates to Executive 
Order 13658's minimum wage rates for existing contracts still covered 
by Executive Order 13658.

III. The 2022 Executive Order 13658 Minimum Wage Rate

    Using the methodology set forth in Executive Order 13658 and 
summarized above, the Department must first determine the annual 
percentage increase in the CPI-W (United States city average, all 
items, not seasonally adjusted), as published by BLS, to determine the 
new Executive Order 13658 minimum wage rate. In calculating the annual 
percentage increase in the CPI-W, the Department must compare the CPI-W 
for the most recent year available with the CPI-W for the preceding 
year. The Department therefore compares the percentage change in the 
CPI-W between the most recent year (i.e., the most recent four 
quarters) and the prior year (i.e., the four quarters preceding the 
most recent year). The Department then increases the current Executive 
Order minimum wage rate by the resulting annual percentage change and 
rounds to the nearest multiple of $0.05.
    In order to determine the Executive Order 13658 minimum wage rate 
beginning January 1, 2022, the Department therefore calculated the CPI-
W for the most recent year by averaging the CPI-W for the four most 
recent quarters, which consist of the first two quarters of 2021 and 
the last two quarters of 2020 (i.e., July 2020 through June 2021). The 
Department then compared that data to the average CPI-W for the 
preceding year, which consists of the first two quarters of 2020 and 
the last two quarters of 2019 (i.e., July 2019 through June 2020). 
Based on this methodology, the Department determined that the annual 
percentage increase in the CPI-W (United States city average, all 
items, not seasonally adjusted) was 2.567 percent. The Department then 
applied that annual percentage increase of 2.567 percent to the current 
Executive Order hourly minimum wage rate of $10.95, which resulted in a 
wage rate of $11.231 (($10.95 x 0.02567) + $10.95); however, pursuant 
to the Executive Order, that rate must be rounded to the nearest 
multiple of $0.05.
    The new Executive Order 13658 minimum wage rate that must generally 
be paid to workers performing on or in connection with covered 
contracts beginning January 1, 2022 is therefore $11.25 per hour.

IV. The 2022 Executive Order 13658 Minimum Cash Wage for Tipped 
Employees

    As noted above, section 3 of Executive Order 13658 provides a 
methodology to determine the amount of the minimum hourly cash wage 
that must be paid to tipped employees performing on or in connection 
with covered contracts. Because the cash wage for tipped employees 
reached 70 percent of the Executive Order 13658 minimum wage beginning 
on January 1, 2018 (i.e., $7.25 per hour compared to $10.35 per hour), 
future updates to the cash wage for tipped employees must continue to 
set the rate at 70 percent of the full

[[Page 51685]]

Executive Order 13658 minimum wage. Seventy percent of the new 
Executive Order 13658 minimum wage rate of $11.25 is $7.875. Because 
the Executive Order provides that the rate must be rounded to the 
nearest $0.05, the new minimum hourly cash wage for tipped workers 
performing on or in connection with covered contracts beginning January 
1, 2022 is therefore $7.90 per hour.

V. Appendix

    The Appendix to this notice provides a comprehensive chart of the 
CPI-W data published by BLS that the Department used to calculate the 
new Executive Order 13658 minimum wage rate based on the methodology 
explained herein.

    Dated: September 9, 2021.
Jessica Looman,
Acting Administrator, Wage and Hour Division.

Appendix: Data Used To Determine Executive Order 13658 Minimum Wage 
Rate Effective January 1, 2022

    Data Source: Consumer Price Index for Urban wage Earners and 
Clerical Workers (CPI-W) (United States city average, all items, not 
seasonally adjusted).

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                                                                         Quarter 3
                                                                         Quarter 4
                                                                         Quarter 1
                                                                         Quarter 2             Annual
                                                                                              average
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2019Q3 to 2020Q2.............................................   250.236   250.112   250.251   250.894   250.644   250.452   251.361   251.935   251.375   249.515   249.521   251.054   250.6125
2020Q3 to 2021Q2.............................................   252.636   253.597   254.004   254.076   253.826   254.081   255.296   256.843   258.935   261.237   263.612   266.412   257.0463
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  Annual Percentage Increase.................................  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........  ........     2.567%
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[FR Doc. 2021-19995 Filed 9-15-21; 8:45 am]
BILLING CODE 4510-27-P