The weekly rule
On Davis-Bacon and Related Acts jobs, the contract clauses say you must submit certified payrolls weekly, for each week in which covered work is performed (29 CFR 5.5(a)(3)(ii)(A), as rewritten in the 2023 rule). They go to the federal agency if it is a party to the contract, or otherwise to the applicant, sponsor or owner that keeps the records.
Direct federal contracts under the FAR set a firmer deadline: payrolls are due within 7 calendar days after the regular pay date of the week covered (48 CFR 22.406-6(a)). Your prime may set an earlier one. If you need a refresher on what the report is, start with certified payroll, explained.
Suspended payments
The federal rules don't set a daily fine for a late payroll. The pressure comes from your money. If a contractor or subcontractor fails to submit the required records, the agency may, after written notice, act to suspend any further payment, advance or guarantee of funds (29 CFR 5.5(a)(2)(i) and (a)(3)(iv)(B)). The suspension lasts until the violations have ceased, which in practice means until the missing payrolls are in.
On direct federal contracts the wording is stronger:
- If payrolls aren't submitted promptly, the contracting officer shall withhold approval of an amount from any payment due that the officer considers necessary to protect the government and the workers (48 CFR 22.406-6(b)).
- The Payrolls and Basic Records clause also lets the contracting officer suspend further payment, after written notice, if records aren't submitted (48 CFR 52.222-8(c)).
One more cost: if the Wage and Hour Division asks for records and you don't produce them in time, you can't later use those records as evidence in a Department of Labor administrative proceeding (29 CFR 5.5(a)(3)(iv)(B)).
Withholding for back wages
Late paperwork and underpaid workers are different problems. When workers are owed wages, the agency may withhold from accrued payments enough to cover the back wages and interest. It may do this on its own, and must do it when an authorized Department of Labor representative asks in writing (29 CFR 5.9(a); 5.5(a)(2)(i)).
That withholding can reach beyond the job where the problem happened. Funds can also be withheld from other federal or federally assisted contracts held by the same prime contractor (29 CFR 5.9(b)). On direct federal contracts, the FAR Withholding of Funds clause works the same way (48 CFR 52.222-7). So a catch-up that turns up underpayments should include paying the workers what they are owed.
Debarment
Failing to submit required records on request, or to make them available, may be grounds for debarment (29 CFR 5.5(a)(3)(iv)(B)). A breach of the contract clauses may also be grounds for terminating the contract (29 CFR 5.5(a)(7)).
Debarment is not automatic, and it is not the usual result of a few late weeks:
- The Wage and Hour Administrator must find that the contractor disregarded its obligations to workers or subcontractors (29 CFR 5.12(a)(1)).
- The contractor is notified and has 30 days to ask for a hearing (29 CFR 5.12(b)).
- If debarred, the firm and its responsible officers can't be awarded covered contracts or subcontracts for 3 years, and their names are published on SAM.gov (29 CFR 5.12(a)).
When a sub is late
On federal jobs, the prime contractor is responsible for the submission of all certified payrolls by all subcontractors (29 CFR 5.5(a)(3)(ii)(A)). The prime is also responsible for subs' compliance with the labor clauses, and liable with them for unpaid wages owed to lower-tier workers (29 CFR 5.5(a)(6)). Since the agency withholds from the prime, one late sub can hold up the whole pay application. Expect your prime to chase you for them.
California penalties
California has two separate $100 penalties. They are easy to mix up.
| Trigger | Penalty | Law |
|---|---|---|
| eCPR upload to DIR not made at least every 30 days | $100 per day of violation, up to $5,000 per project. Not charged until 14 days after the deadline. | Labor Code 1771.4(a)(3) |
| Written request for payroll records not met within 10 days of receipt | $100 for each calendar day, or portion of a day, for each worker, until strict compliance. No cap. | Labor Code 1776(h) |
The eCPR deadline. Each contractor and subcontractor uploads its own payroll records to the Labor Commissioner through DIR's system, at least once every 30 days while work is going on and within 30 days after the last day of work, or more often if the contract says so. DIR's FAQ calls weekly uploads the best practice. The penalty falls only on the firm that failed to upload.
The records request. The 1776(h) penalty adds up fast: 6 workers and 10 days late is $6,000. When the Division of Labor Standards Enforcement asks, it is withheld from progress payments then due. A contractor isn't penalized under this section for a subcontractor's failure to comply.
Withheld payments. On projects where the awarding body runs a labor compliance program, it must stop contract payments when payroll records are delinquent or inadequate, and the prime must in turn stop paying the sub whose records are missing (8 CCR 16435). Once the records are produced, payments can't be withheld solely for that reason. Separately, if the Labor Commissioner issues a civil wage and penalty assessment, the awarding body must withhold enough to cover it (Labor Code 1727). More on the filing itself in California certified payroll.
Other states
State prevailing wage laws set their own deadlines and consequences. For example, Washington requires contractors on public works to file certified payroll with the Department of Labor and Industries at least once a month, and treats not doing so as a violation of its prevailing wage law (RCW 39.12.120). Check your contract and your state labor department.
How to catch up
- Make a list of every missing week, from the first week on site to today. Note which weeks had covered work and which didn't.
- File the missing weeks in order, oldest first. Keep the payroll numbers in sequence so the reviewer can see nothing is skipped.
- Handle the no-work weeks the way your contract or prime asks. Many want a “no work performed” report. On California eCPR you can file a statement of non-performance.
- Check each week before you sign. If a week shows someone was paid less than the rate for their trade, pay the difference and keep proof. The report checklist covers the common errors.
- Talk to the agency or prime in writing. Tell them how many weeks are missing and when they'll have them. If you got a written records request in California, answer within the 10 days.
- Keep the records, including the certified payrolls, for at least 3 years after all the work on the prime contract is completed (29 CFR 5.5(a)(3)(i)(A) and (ii)(G)).
For federal-format weeks, the free WH-347 builder fills the form in your browser. If you have a stack of weeks to file, PrevailCrew's paid plans keep the crew and rates saved, so each missing week starts from the one before. Field-by-field help is in the WH-347 instructions.