On September 26, 2018, the Department of Labor issued an amendment to its regulations which impose the federal minimum wage on certain permits and contracts issued by federal agencies. The amendment was prompted by Executive Order 13838 which stated that the prior direction in Executive Order 13568 to impose the federal minimum wage on certain contracts did not apply to “contracts or contract-like instruments entered into with the Federal Government with seasonal recreational services or seasonal recreational equipment rental for the general public on Federal lands,” which included “river running, hunting, fishing, horseback riding, camping, mountaineering activities, recreational ski services, and youth camps.” The amended regulation, however, stated that the exemption from the federal minimum wage “shall not apply to lodging and food services associated with seasonal recreational services.”
The minimum federal wage was initially applied to virtually all contracts and contract-like instruments pursuant to Executive Order 13658 which was issued on February 12, 2014. Executive Order 13658 stated that the federal minimum wage had to be paid to employees under any contract or contract-like instrument (e.g., a permit) “entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public,” including concessions. Executive Order 13838 was then issued on May 25, 2018 and amended the prior Executive Order. Executive Order 13838 stated that the prior Executive Order did not apply to authorizations of seasonal recreational services, and defined seasonal recreational services as noted above. On September 26, 2018, the Department of Labor issued a final rule which inserted the new exemption verbatim into the agency’s regulations. The agency stated that it did not issue a proposed rule or seek comments because it was inserting into its regulations the exact language from the Executive Order as directed in that Order. The agency had issued a memorandum on July 13, 2018 stating that the exemption was in force and its intention to formally amend its regulations.