Davis-Bacon and Weatherization: Where Things Stand

by Anita Lichtblau, Esq.

Updated October 29, 2009

 

Bacon Act (DBA) was, let alone how to apply its prevailing wage requirements to Weatherization Assistance Program (WAP) employees and contractors? For many months after the American Recovery and Reinvestment Act (ARRA) imposed the DBA’s requirements on ARRA-funded projects in February, there was a great deal of uncertainty on many important legal issues. The good news is that although some technical legal issues still remain unresolved, many of those questions have now been answered. What follows is a brief summary of the key issues and how they have been, or not been, resolved. More information is available in CAPLAW Online ARRA Toolkit, available at www.caplaw.org, and on
www.waptac.org.

 

ARRA Imposition of Prevailing Wages
ARRA, which generally went into effect on February 17, 2009,
requires that all laborers and mechanics employed by contractors and
subcontractors on projects funded directly by or assisted in whole or
in part with ARRA funds must be paid the local prevailing wage, as
determined by the U.S. Department of Labor (DOL).1 Some of these
programs, such as WAP, were not previously required to comply with
these requirements. Others, such as Head Start, were. As of now, for
programs, such as WAP, that were not previously subject to DBA
requirements, these requirements are only temporary; unless
Congress passes further legislation, they will expire with the ARRA
funding.

    
Whose Employees?
The DOL, which administers the DBA, has stated that prevailing
wages must be paid to laborers and mechanics doing ARRA
weatherization work, including both those working for contractors
of the WAP subgrantee providers and those working directly for the
WAP subgrantee providers themselves, unless in the latter case the
provider is a government entity (such as a public CAA).2 This is true
regardless of whether or not the workers are called “employees.”
Weatherization auditors and inspectors are not considered laborers
or mechanics and therefore not subject to the DBA.3
Wage Determinations.  This was the big question – could or should the existing DOL wage determinations (WDs) and classifications be used for
weatherization work or were new determinations specific to weatherization needed? After many rounds, the final answer turned out to be that DOL has now issued project wage determinations for every state, distinguished by county within the state, and the District of Columbia.4 Each of the wage determinations includes a classification for “residential weatherization worker.” Some WDs also include separate classifications for workers doing window and door installation and/or HVAC work. The regular “building
construction” WDs, rather than the special weatherization WDs, apply to buildings that are five or more stories in height. Some of the WDs include both an hourly wage as well as hourly fringe benefit. These wage determinations should be used for all ARRA-funded WAP projects. The general DBA rule is that the wages and fringes paid must equal or exceed those in the WDs. One issue recently clarified addressed the DBA contract language issued by the U.S. Department of Energy (DOE) which states that wages exceeding the WD must receive the approval of DOE or its designated representative; otherwise WAP funds may not be used to pay the excess.5  The DBA FAQ issued by the DOE (available at http://apps1.eere.energy.gov/weatherization/davis_bacon_faqs.cfm) explains that as long as an organization is able to perform all of the work that it stated it would perform under its grant, the organization is not required to receive approval to pay a wage rate higher than the DBA WD.


   

Volunteers and Trainees
In general, everyone doing laborer or mechanic work on ARRA funded weatherization projects must be paid the prevailing wage indicated on the DOL wage determinations. Therefore, unpaid volunteers may not be used. However, if the authorizing statute for a federal program, such as AmeriCorps, specifically provides for the establishment of specific wage rates, then that wage rate will override the DOL wage determination. A training or apprentice wage can be paid only if the trainee is registered in a DOL-approved apprenticeship or training program or with a state apprenticeship agency recognized by DOL. Otherwise, the individual is to be paid the DBA rate for the classification of work that they are performing regardless of their skill level.

   

Contract Language and Enforcement Responsibility
There had been some talk that perhaps some of the administrative DBA requirements contained in the required DBA contract clauses would be relaxed for the WAP ARRA program. That has not been the case. DOE has issued modified DBA contract language to be included in all weatherization contracts subject to ARRA, but the modifications are clarifications specific to the WAP program, rather than any relaxing of the rules. This language can be found on the DBA Information Page of the CAPLAW website. Subgrantee providers who contract out some or all of the weatherization work are responsible for inserting this language in their contracts with weatherization contractors, for collecting the payroll certifications from
the contractors, and for submitting them to the state. If the subgrantee uses its own employees to do the weatherization work, then it must pay the appropriate prevailing wages and submit and certify the payroll form for its own employees. If a subgrantee does some of the work with its own employees, and some with contractors, it must submit one form for its employees, and a separate form for each of its contractors. The state is
responsible for monitoring enforcement.

   

The Payroll Certification and Form
Although the specific payroll certification form is optional, DOL Form WH-347 is probably the easiest way to ensure that all required information is included. A detailed explanation of the form and related issues is included in CAPLAW’s just-issued “Step-by-Step Guide for Complying with the Davis Bacon Act,” available on our website. The bottom line is that the wages must be paid weekly and the form must be submitted the following
week. If an employee works in different counties with different WDs, then that must be listed separately. Fringe benefits can be tricky, check out the Step-by Step Guide for details. The total paid to the worker, including the fringe, must equal the total wage and fringe (if any) included in the WD. An individual with personal knowledge of the payroll must certify and sign the form.

   

1The American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-15, § 1606.
2June 1, 2009 letter from Timothy Helm, DOL, to Matthew Rogers, DOE available at

www.caplaw.org/documents/davis-bacon-application-weatherization-letter_000.pdf.
3Id.

4 They are available at:http://apps1.eere.energy.gov/weatherization/dol_wage_determination.cfm.

5 See http://apps1.eere.energy.gov/weatherization/pdfs/dba_clauses_weatherization.pdf at page 11.