Tag Archives: Davis–Bacon Act

Surveyors and Material Testers Now Subject to Prevailing Wage Laws??? Unions Continue to Have Their Way with Prevailing Wage

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.

http://www.dol.gov/whd/programs/dbra/Survey/AAM212.pdf

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.

House Republicans Push Back on Davis-Bacon Prevailing Wage Expansion

Contributed by Jonathon Hoag

On July 11, 2013, House Republican Committee leaders sent a letter to the U.S. Department of Labor (DOL) requesting it explain why it issued guidance to cover land & field surveyors under federal prevailing wage law (i.e. Davis-Bacon Act).  This type of work has historically been excluded from prevailing wage requirements as preconstruction work.  In fact, a wage determination in accordance with the Davis-Bacon Act currently does not exist for this type of work.  However, the DOL, under extreme pressure from the International Union of Operating Engineers (IUOE), changed its position to include this type of work as covered by the Davis-Bacon Act.  The DOL knows that it has not recognized this work under prevailing wage law and does not have a wage determination applicable to this work, but it has requested that contractors pay survey crews the applicable wage for the classification of work that most closely matches the work performed.  The July 11, 2013 letter to the DOL points out that this abrupt change could have significant impact on contractors and it was made with little notice or justification. 

The House Republican Committee leaders have asserted that this type of change should only be made after the DOL goes through a transparent rulemaking procedure.  These House Committee leaders have requested numerous documents from the DOL that purportedly support the change and illustrate the involvement of organized union.  Only time will tell if this push back will have any impact on the DOL’s efforts to expand the prevailing wage law requirements.

Illinois contractors are very accustomed to this type of abrupt change in state prevailing wage law.  The aspect that is undoubtedly transparent is that organized labor is on a mission to widen the net with respect to the type of work covered by prevailing wage laws.  Contractors should be prepared for more arbitrary expansion to prevailing wage laws at the state and federal level.

DOL Publishes Summary of Prevailing Wage Laws Throughout the U.S.

Contributed by Jeff Risch

Although some states do not have prevailing wage laws, most do.  Additionally, many contractors throughout the United States have come across the federal prevailing law by way of Davis-Bacon and its related laws (aka Davis-Bacon and Related Acts – DBRAs). DBRAs apply to contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. Davis-Bacon applies to contractors and subcontractors performing work on federal or District of Columbia contracts. Davis-Bacon prevailing wage provisions apply to the “Related Acts,” under which federal agencies assist construction projects through grants, loans, loan guarantees and insurance (i.e. HUD). Davis-Bacon contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area. Davis-Bacon directs the U.S. Department of Labor to determine such locally prevailing wage rates. Under state law, prevailing wage requirements (including the administration and enforcement of such requirements) are specific and unique to each state.

In December 2011, the U.S. Department of Labor (DOL) revised and updated a concise summary of the general applicability and thresholds for state prevailing wage law purposes in all jurisdictions that continue to have such laws on the books (see link: http://www.dol.gov/whd/state/dollar.htm).  For any employer performing prevailing wage work on a state or federal level, intimate knowledge and familiarity with applicable prevailing wage laws is critical.