Davis-Bacon Act Q & A
- Auditor/Inspectors?
- Department Director?
- Administrative Assistant?
- Sole Proprietors?
- Salaried Employees?
- Summer Youth Employment?
- AmeriCorps volunteers?
- Job Site Inspections
- Posters
- Payroll
- Fringe Benefits
Who is covered by the Davis-Bacon Act?
Auditor/Inspectors doing some weatherization work
We have Auditor/Inspectors who will perform blower door tests. Sometimes while out on these inspections the Auditor/Inspector will replace light bulbs, carbon monoxide detectors, caulk a window or install a smoke detector. Does this person need to be covered by Davis-Bacon if these duties take less than 20% of their time?
Yes, to the extent that these activities (replacing light bulbs, etc.) are not considered part of the energy audit itself. The June 1, 2009 letter from Tim Helm at DOL to Matthew Rogers at DOE specifically says that “technicians conducting energy audits would not be subject to the Davis-Bacon requirements.” (See letter). However, the DOL Field Operations Handbook, Section 15e13, says that to the extent inspectors perform other duties as laborers or mechanics they must be paid the prevailing wage. We do not believe the “working foreman” rule, found at 29 CFR § 5.2(m), which provides that only those working foreman who devote more than 20% of their time in a workweek to laborer or mechanic duties must be paid prevailing wages for the time they spend on such duties, would apply here because an auditor/inspector would not be considered a working foreman. See the relevant section of the DOL handbook.
Posted 7/17/09
Department Director doing some weatherization work
Same as above except the person in question is the Department Director.
No. This person would probably be considered a “supervisory employee” or a working foreman and therefore need not be paid for such activities as long as they take up less than 20% of his or her worktime during a workweek. See Handbook Section 15e14(b). Also, if this person is employed in a bona fide executive, administrative, or professional capacity, as defined in the Fair Labor Standards Act (FLSA) regulations found at 29 CFR Part 541, he or she would not be considered a laborer or mechanic and therefore need not be paid prevailing wages for any portion of his or time. See Handbook Section 15e14(a); 29 CFR § 5.2(m).
Posted 7/17/09
Administrative Assistant doing some weatherization work
Same as # 1 except the person in question is an administrative assistant who has been trained to do audits/inspections.
Probably same answer as # 1, assuming this person would not qualify under any of the white collar FLSA exemptions. However, we are trying to clarify with DOL as to whether 29 CFR § 5.2(m), which says that “[t]he term [laborer or mechanic] does not apply to workers whose duties are primarily administrative, executive, or clerical, rather than manual,” requires that some or all time spent on laborer or mechanic duties is covered by prevailing wage. Stay tuned.
Posted 7/17/09
Are Sole Proprietors covered by Davis-Bacon if they are the ones performing the work?
The answer to this question is currently being revised.
Posted 3/12/10
Are salaried employees exempt from Davis Bacon?
Not necessarily. Whether or not employees are salaried has no relevance as to whether they are exempt from Davis Bacon. Some salaried employees may be exempt due to being exempt from FLSA, for example, but others may not.
Posted 7/17/09
WIA Summer Youth Employment coverage.
We are just starting up our WIA Summer Youth Employment program (ARRA dollars). We had hoped to employ at least 1 person from the Summer Youth Employment Program (SYEP) in the ARRA Weatherization program. Our question: is the SYEP person required to be covered under Davis Bacon rules. I've gone to the DOL website and read All Agency Memorandum (AAM) 71 and AAM 96 and it is unclear whether the SYEP youth is covered. It seems that DOL would have to agree to the youth not being covered by Davis Bacon rules in writing.
Unless your SYEP program is certified as a training program by the federal or state DOL, those youths would be covered by Davis Bacon rules. This was the rule for trainees stated by DOL at the DBA session at the June 24, 2009 CAPLAW conference did last week at our conference. This follows from the DBA regulation found at 29 CFR § 5.2(n). There is a specific reference in AAMs you referenced, and a similar reference in Section 15e03 of the DOL Field Operations Handbook, to conditions under which participants in summer youth employment may be paid lower than prevailing wages. Whichever authority is used, however, it appears that you would need DOE and DOL prior approval to do so. See the Davis-Bacon section of the Field Operations Handbook.
Posted 7/17/09
Do the Davis-Bacon labor standards apply to AmeriCorps volunteers?
No. Section 4 of the Davis-Bacon Act, 40 U.S.C. § 3146, provides that the statute “does not supersede or impair any authority otherwise granted by federal law to provide for the establishment of specific wage rates.” Specific wage rates may be provided for by federal statutes that either (i) authorize the setting of the rates of pay or living allowances for program participants or (ii) specify in the statutory language the living allowances and other benefits that must be provided to program participants, such as is done by the American Conservation and Youth Service Corps (AmeriCorps) program of the Corporation for National and Community Service, 42 U.S.C. § 12651. Thus, in accordance with section 4 of the Davis-Bacon Act, the DOL has determined that federal youth programs that establish specific compensation to be given participants would not be covered by Davis-Bacon labor standards. See DOL Advisory Letter dated May 29, 2009 to Mr. Chris Henderson of the United States Department of Interior. It is important to note that a federal statute that merely includes an exemption from Davis-Bacon labor standards is not sufficient. These exemptions are overridden by the “notwithstanding any other provision of law” language in Section 1606 of ARRA. See DOL Memorandum #207.
Posted 7/17/09
Are we required to go to the jobsites and interview employees of sub-contractors to verify that they are actually doing the work that was reported and for the wage rate and benefit reported? We have had two sources tell us yes and one source tell us no.
Not necessarily. The DBA regulations say that it is the responsibility of the contracting agency, i.e. DOE, to ensure that investigations are made, but some agencies, such as HUD, delegate that responsibility down the line. See 29 CFR § 5.6(a)(3) (“The Federal agency shall cause such investigations to be made as may be necessary to assure compliance with the labor standards clauses required by § 5.5 …. Such investigations shall include interviews with employees …”). We hope that DOE will clarify in its guidance.
Posted 7/17/09
Are posters supposed to be displayed at each job site or can they be posted in our subcontractors' vehicles and/or office?
This was addressed by DOL and DOE at the DBA workshop at the CAPLAW conference on June 24, 2009. DOL said it was sufficient to post at the office to which the laborer reports with the other required employment law posters. DOE said it had to be in the vehicle, or perhaps the home. We will wait to see if DOE will clarify. Until then, the conservative approach is to display the poster in the vehicle or site, as well as the office. The DOL representative at the workshop emphasized that the goal is to put it somewhere they will see it.
Posted 7/17/09
Certified Payroll form
Who is responsible for signing the certified payroll form? We have been told that it has to be an officer and cannot be the payroll clerk.
“The statement shall be executed by the contractor or subcontractor or by an authorized officer or employee of the contractor or subcontractor who supervises the payment of wages…” 29 CFR § 3.3. It does not need to be an officer; it just needs to be someone who has knowledge of the wages that were paid.
Posted 7/17/09
An employee works on projects covered by Davis-Bacon and projects that are not covered.
Are we required to use the employee’s Davis-Bacon prevailing wage pay rate to calculate paid leave (e.g., vacation, holiday and sick leave) or can we use the employee’s regular pay rate?
You can use the employee’s regular pay rate. The Davis Bacon Act requires only that laborers and mechanics be paid prevailing wages and fringes for work performed on the “site of work” or, in this case, on the “project.” See 40 U.S.C. § 3142(c); 29 CFR § 5(a)(1) and ARRA (requiring prevailing wages for work performed on a covered “project”). It does not speak to time spent not performing work – i.e., vacation, holidays or sick leave.
The Department of Labor’s Field Operations Handbook Section 15f07 explains that a salaried employee performing DBA and non-DBA work in a given week needs only be paid DBA rates (i.e., hourly wages and fringes) “for work performed on the DBA project.” This section also states: “It should be kept in mind that a nonexempt salaried employee is only due the applicable DBA rate for those hours actually performing laborers or mechanics duties.” Of course, this same section indicates that an employer cannot lower the non-DBA rate to compensate for the DBA rate, but it does not say that non-DBA time, such as paid leave time, must be compensated at the DBA premium.
Posted 7/17/09
