Contributed by Jeffrey A. Risch
On March 22, 2013, under pressure from the International Union of Operating Engineers, the U.S. Department of Labor (DOL) published its Memorandum No. 212 on the topic of whether surveyors, survey workers and survey crew members who perform work related to federal construction projects fall under Davis-Bacon and other related acts; thereby triggering the application of federal prevailing wage law to such workers. Despite the DOL’s explanation that it was merely clarifying and supplementing prior DOL Memorandums from the 1960’s, the March 2013 Memorandum signaled a dramatic shift in the DOL’s interpretation. For the first time, the DOL believes that surveyors, survey workers and survey crew members who perform work on federal construction projects may be subject to federal prevailing wage law. The emphasis is on the word “may” because attempting to interpret the meaning behind the DOL’s guidance is mind-numbing.
Memorandum No. 212, reads in relevant part:
Survey crew members who perform primarily physical and/or manual work while employed by contractors or subcontractors immediately prior to or during actual construction in direct support of construction crews, will be deemed laborers or mechanics when employed on-site of the construction work. Also, under the U.S. Housing Act of 1937 and the Housing Act of 1949, the “development of the project” coverage test is broader and thus may allow prevailing wage to cover preliminary survey work. The question of whether a survey worker is a laborer or mechanic is a question of fact to be interpreted by the DOL. Additionally, the DOL goes on to remind the public that bona fide “white collar” exempt employees under the Fair Labor Standards Act 29 CFR 541 (FLSA), such as Professionals, Executives and Administrators, continue to be exempt from federal prevailing law.
Confused yet? Most everyone is. And if trying to comply with federal prevailing wage changes is not hard enough, some states continue to expand the scope of their own prevailing wage laws. For example, Illinois, by and through the Illinois Department of Labor (IDOL), has allowed the operating engineers to petition successfully for recognition of work that has historically not been covered by the Illinois Prevailing Wage Act. Most recently, through persuasion from organized labor, the IDOL has made determinations on its own (without statutory amendments to the actual law) to include Material Testing and Surveying on Illinois construction projects.
According to the IDOL’s prevailing wage rate sheets, Material Testing is defined as:
MATERIAL TESTER I: Hand coring and drilling for testing of materials; field inspection of uncured concrete and asphalt.
MATERIAL TESTER II: Field inspection of welds, structural steel, fireproofing, masonry, soil, facade, reinforcing steel, formwork, cured concrete, and concrete and asphalt batch plants; adjusting proportions of bituminous mixtures.
The IDOL rate sheets now also include Survey Worker, defined as:
SURVEY WORKER – Operated survey equipment including data collectors, G.P.S. and robotic instruments, as well as conventional levels and transits.
Historically, Illinois’ prevailing wage law did not cover testing or inspection activities. The personal and professional opinion of this writer is that the Illinois Legislature never contemplated such activities to fall under Illinois’ Prevailing Wage Act. Furthermore, despite clarity from the U.S. DOL that “professional exempt” workers would not fall under the federal prevailing wage law, the IDOL need not adopt federal guidance with regard to Illinois’ prevailing wage law. Unfortunately, the courts will have to intervene and provide clarity. Until then, interested parties should work with competent legal counsel and various trade associations for insight and assistance.