labor standards legislation

LABOR STANDARDSLEGISLATION

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Page Erickson

Sharon Ruehl

June 2009

INTRODUCTION

PURPOSE

PROVIDE A MINIMUM LEVEL OF INCOME FOR EMPLOYEES

PROTECT LOCAL WAGE SCALES FROM OUTSIDE COMPETITION

REDUCE HOURS WORKED BY INDIVIDUALS TO SPREAD EMPLOYMENT

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INTRODUCTION CON’T

TYPE OF LEGISLATION

PROTECTIVE -- REMEDIAL

COVERAGE IS INTERPRETED BROADLY

EXEMPTIONS ARE INTERPRETED NARROWLY

RESPONSIBILITY

ALL RESPONSIBILITY IS ON THE EMPLOYER

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CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

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PROVISIONS

TIME AND ONE HALF REQUIRED FOR WORK OVER 8 HOURS PER DAY AND 40 HOURS PER WEEK

AMENDED IN 1986 TO DELETE THE OVERTIME REQUIREMENT FOR WORK OVER 8 HOURS PER DAY

THE PURPOSE IS TO ENCOURAGE THE HIRING OF ADDITIONAL WORKERS.


APPLICATION

TO FEDERAL CONSTRUCTION CONTRACTS OVER $100,000. TO FEDERALLY ASSISTED CONSTRUCTION CONTRACTS CONTAINING DAVIS-BACON WAGE STANDARDS IF OVER $100,000.

TO LABORERS, MECHANICS, WATCHMEN AND GUARDS, INCLUDING THOSE UNDER SCA CONTRACTS.

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OVERTIME REQUIREMENTS

TIME AND ONE-HALF THE BASIC RATE OF PAY.

THE BASIC RATE OF PAY CANNOT BE LESS THAN THE RATE REQUIRED FOR THE APPROPRIATE CLASSIFICATION.

A SINGLE AMOUNT PAID FOR A TASK OR UNSPECIFIED WORK TIME CANNOT QUALIFY AS OVERTIME WAGES

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LIQUIDATED DAMAGESASSESSMENT IN THE AMOUNT OF $10 PER DAYFOR EACH EMPLOYEE WHO IS NOT PROPERLY COMPENSATED

THE HEAD OF THE CONTRACTING AGENCY MAY REVIEWTHE DETERMINATION OF LIQUIDATED DAMAGES

RECOMMENDATIONS MAY BE MADE FOR A REDUCTION

IF THE CONTRACTOR INADVERTENTLY VIOLATED THE LAW AFTER EXERCISING DUE CARE, A RECOMMENDATION MAY BE MADE TO RELIEVE THE CONTRACTOR OF THE LIABILITY

THE ADMINISTRATOR WILL MAKE THE FINAL DETERMINATION OF DAMAGES DUE


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STATUTE OF LIMITATIONS

THE SIX YEAR STATUTE OF LIMITATIONS FOR CONTRACT ACTIONS IS APPLICABLE TO CWHSSA.

COPELAND ACT

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PROVISIONS

EMPLOYEES MUST RECEIVE THE FULL AMOUNT OF WAGES AND BENEFIT DUE FREE AND CLEAR.

ANYONE VIOLATING THIS ACT IS SUBJECT TO $5,000 FINE AND UP TO FIVE YEARS IN PRISON.

THIS IS A CRIMINAL STATUTE, THERE IS NO ADMINISTRATIVE RELIEF IN IT.

COPELAND ACTADMINISTRATION

EACH CONTRACTOR MUST SUBMIT WEEKLY PAYROLLS FOR ALL LABORERS OR MECHANICS EMPLOYED ON A PROJECT SUBJECT TO DAVIS-BACON REQUIREMENTS. THE PAYROLL MUST CONTAIN A STATEMENT OF COMPLIANCE SIGNED BY THE CONTRACTOR OR AGENT.

THIS CERTIFIED THAT EACH EMPLOYEE HAS BEEN PAID IN FULL WITHOUT REBATE OR ILLEGAL DEDUCTION.

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COPELAND ACT

ADMINISTRATION

THE CONTRACTING AGENCY OR DOL WILL DEVELOP INFORMATION ABOUT POSSIBLE VIOLATIONS.

THE DEPARTMENT OF JUSTICE WILL PROSECUTE AN EMPLOYER UNDER THIS LAW.

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THE MILLER ACT

PROVISIONS

REQUIRES A PERFORMANCE BOND AND A PAYMENT BOND FROM THE CONTRACTOR ON ANY CONTRACT FOR CONSTRUCTION IN EXCESS OF $25,000.

ANY PERSON WHO PROVIDES MATERIAL OR LABOR AND WHO IS NOT PAID WITHIN 90 DAYS OF THE LAST DAY OF PERFORMANCE MAY SUE ON THE BOND.


TWO YEARS AS IT IS APPLICABLE TO DAVIS-BACON ACT.

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THE MILLER ACT

APPLICATION

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WRITTEN NOTICE OF THE EXISTENCE OF A CLAIM MUST BE GIVEN BY REGISTERED MAIL TO THE PRIME CONTRACTOR WITHIN 90 DAYS OF THE LAST DAY OF PERFORMANCE. ALL SUITES TO RECOVER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE LAST DATE OF PERFORMANCE. MUST BE FILED IN THE FEDERAL DISTRICT COURT WHERE THE CONTRACT WAS TO BE PERFORMED AND EXECUTED. THE INDIVIDUAL MUST BRING THE ACTION IN THE NAME OF THE UNITED STATES FOR HIS/HER BENEFIT AND THE SUIT IS PROSECUTED BY THE WORKER'S OWN ATTORNEY.

THE MILLER ACT


TWO YEARS AS IT IS APPLICABLE TO DAVIS-BACON ACT.

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DAVIS BACON ACT

PROVISIONS

REQUIRES PAYMENT OF LOCALLY PREVAILING WAGES AND FRINGE BENEFITS TO LABORERS AND MECHANICS ON DIRECT FEDERAL CONSTRUCTION CONTRACTS OF $2,000 OR MORE

EMPLOYEES MUST BE PAID THE FULL AMOUNT OF WAGES AND BENEFITS NOT LESS OFTEN THAN ONCE A WEEK.

WAGES SHALL BE COMPUTED AT NOT LESS THAN THE AMOUNT DETERMINED BY THE SECRETARY OF LABOR AND CONTAINED IN THE CONTRACT

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DAVIS BACON ACTPROVISIONS

NO CONTRACTUAL RELATIONSHIP BETWEEN THE CONTRACTOR AND THE INDIVIDUALS APPLIES

CONGRESS EXTENDED THE DAVIS-BACON REQUIREMENTS TO RELATED ACTS PROVIDING FEDERAL ASSISTANCE TO CONSTRUCTION

CONTRACTS MAY BE SIGNED BY A FEDERAL AGENCY OR OTHER AGENCIES

• . • • WAGES SHALL BE COMPUTED AT NOT LESS THAN THE AMOUNT DETERMINED BY THE SECRETARY OF LABOR AND CONTAINED IN THE CONTRACT• • NO CONTRACTUAL RELATIONSHIP BETWEEN THE CONTRACTOR AND THE INDIVIDUALS APPLIES • • CONGRESS EXTENDED THE DAVIS-BACON REQUIREMENTS TO RELATED ACTS PROVIDING FEDERAL ASSISTANCE TO CONSTRUCTION• • CONTRACTS MAY BE SIGNED BY A FEDERAL AGENCY OR OTHER AGENCIES• • APPLICATION• • TO CONTRACTS FOR CONSTRUCTION, ALTERATION OR REPAIR, INCLUDING PAINTING AND DECORATING OF PUBLIC BUILDINGS OR PUBLIC WORKS • • TO UTILITY SYSTEMS WITHIN OR ATTACHED TO BLDGS.•

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DAVIS BACON ACT

APPLICATION

TO CONTRACTS FOR CONSTRUCTION, ALTERATION OR

REPAIR, INCLUDING PAINTING AND DECORATING OF PUBLIC BUILDINGS OR PUBLIC WORKS

TO UTILITY SYSTEMS WITHIN OR ATTACHED TO BLDGS.

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DAVIS BACON ACT

APPLICATION

IT MAY APPLY TO SOME NON-CONSTRUCTION CONTRACTS INVOLVING CONSTRUCTION WORK

THE CONSTRUCTION WORK IS SUBSTANTIAL IN RELATION TO THE CONTRACT

THE CONSTRUCTION WORK IS PHYSICALLY AND FUNCTIONALLY SEPARATE FROM OTHER CONTRACT WORK (EXAMPLE) LIVERMORE LIGHTING CONTRACT

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DAVIS BACON ACT

APPLICATION FACILITY SUPPORT SERVICES CONTRACTS TYPICALLY HAVE BOTH

MAINTENANCE AND CONSTRUCTION REQUIREMENTS. DBA WILL APPLY TO THE CONSTRUCTION ACTIVITIES.

DEMOLITION THAT IS TO BE FOLLOWED BY CONSTRUCTION AT THE SITE IS COVERED UNDER DBA

CARPET LAYING THAT IS PART OF ORIGINAL, REMODELING OR RENOVATION CONSTRUCTION

SOIL BORING CONTRACTS THAT ARE DIRECTLY RELATED AND INCIDENTAL TO, OR AN INTEGRAL PART OF THE ACTUAL CONSTRUCTION ARE SUBJECT TO DBA

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DAVIS BACON ACT

WAGE DETERMINATIONS

ISSUED BY THE ADMINISTRATOR OF THE WAGE & HOUR DIVISION, U. S. DEPARTMENT OF LABOR.

EACH CONTAINS MINIMUM BASIC HOURLY RATES AND FRINGE BENEFITS FOR CLASSIFICATIONS OF EMPLOYEES CONTAINED WITHIN.

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DAVIS BACON ACT

TYPES OF DETERMINATIONS

THERE ARE FOUR TYPES OF CONSTRUCTION AND DETERMINATIONS:

• BUILDING - SHELTERED ENCLOSURES WITH WALK-IN ACCESS

• RESIDENTIAL - SINGLE FAMILY OR APARTMENTS, FOUR

STORIES OR LESS

• HIGHWAY - PAVING, ROADS, STREETS, RUNWAYS

• HEAVY - ALL OTHER, BRIDGES, DAMS, DREDGING

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DAVIS BACON ACT

GENERAL WAGE DETERMINATIONS

COMMON IN MOST METROPOLITAN AREAS AND SOME RURAL AREAS ALSO

ISSUED BY DOL AND PUBLISHED BY THE SUPERINTENDENT OF DOCUMENTS

AVAILABLE ON-LINE AT HTTP//:WWW.WDOL.GOV

NOTICES PUBLISHED EACH FRIDAY IN THE FEDERAL REGISTER

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DAVIS BACON ACT

PROJECT WAGE DETERMINATIONS

REQUESTED BY THE CONTRACTING AGENCY

MAY ONLY BE USED ON THE REQUESTED PROJECT

VALID FOR 180 DAYS AFTER DATE OF ISSUE

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DAVIS BACON ACT

APPLICATION OF WAGE DETERMINATIONS

ALL PROJECTS SUBJECT TO DBA MUST HAVE A WAGE DETERMINATION.

THE CONTRACTING AGENCY IS RESPONSIBLE TO INCORPORATE THE PROPER WAGE DETERMINATION.

ALL MODIFICATIONS ARE EFFECTIVE IF PUBLISHED BEFORE CONTRACT AWARD.

AGENCY HAS DISCRETION IF PUBLISHED LESS THAN 10 DAYS BEFORE BID OPENING DATE ON COMPETITIVE CONTRACTS.

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DAVIS BACON ACT


WAGE DETERMINATIONS ARE EFFECTIVE FOR THE DURATION OF THE CONTRACT.

THE MOST CURRENT WAGE DETERMINATION MUST BE INCORPORATED INTO ANY OPTION TO EXTEND THE TERMS OF A CONTRACT.

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DAVIS BACON ACT


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RESIDENTIAL OR BUILDING PROJECTS MAY INCLUDE INCIDENTAL WORK SUCH AS SITE PREPARATION AND UTILITIES. THIS WORK WILL USE THE SAME SCHEDULE AS THE OVERALL PROJECT UNLESS MORE THAN 20% OF THE WORK IS OF A DIFFERENT CHARACTER. A SECOND SCHEDULE THEN SHOULD BE INCLUDED

DEMOLITION, FOLLOWED BY CONSTRUCTION WITHIN FIVE YEARS IS COVERED. IT WILL USE THE SAME SCHEDULE AS THE FOLLOW-ON CONSTRUCTION.

DAVIS BACON ACT

CHALLENGED WAGE DETERMINATIONS

A WAGE DETERMINATION MAY BE CHALLENGED BY AN INTERESTED PARTY ONLY BEFORE BID OPENING OR AWARD. THIS COULD INCLUDE THE CONTRACTOR OR CONTRACTING AGENCY

LETTERS OF INADVERTENCE AND MODIFICATIONS

DOL MAY CORRECT ANY WAGE DETERMINATION FOUND TO CONTAIN CLERICAL ERRORS

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DAVIS BACON ACT

CHALLENGED WAGE DETERMINATIONS

THE CORRECTION IS EFFECTIVE IMMEDIATELY TO ANY SOLICITATION OR ACTIVE CONTRACT

IF A CONTRACT IS NOT AWARDED WITHIN 90 DAYS AFTER BID OPENING, ANY MODIFICATION PUBLISHED PRIOR TO AWARD SHALL BE EFFECTIVE. THE CONTRACTING AGENCY MAY REQUEST AN EXTENSION

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DAVIS BACON ACT

ESTABLISHING A WAGE DETERMINATION

WAGE DETERMINATIONS ARE BASED ON SURVEYS CONDUCTED BY DOL

IT MAY COVER A SINGLE COUNTY, AN ENTIRE METROPOLITAN AREA OR A GROUP OF RURAL COUNTIES. RURAL AND URBAN COUNTIES CANNOT BE INCLUDED WITHIN THE SAME SURVEY

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DAVIS BACON ACT

ESTABLISHING A WAGE DETERMINATION

THE PREVAILING RATE WILL BE THAT PAID TO A MAJORITY OF EMPLOYEES IN EACH CLASSIFICATION. IF THERE IS NO MAJORITY, IT WILL BE THE WEIGHTED AVERAGE OF THOSE IN THE CLARIFICATION.

A GENERAL WAGE DETERMINATION WILL CONTAIN AS COMPLETE A LISTING OF CRAFTS THAT CAN BE OBTAIN SO IT CAN BE USED FOR MANY PROJECTS.

A PROJECT WAGE DETERMINATION WILL CONTAIN ONLY THE CRAFTS REQUESTED BY THE CONTRACTING AGENCY.

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DAVIS BACON ACT

WAGE RATES

WAGE RATES CONTAINED IN A DETERMINATION CONSIST OF BASIC HOURLY RATES PLUS FRINGE BENEFITS FOR EACH CLASSIFICATION OF WORK

MINIMUM RATES AND THE CONTRACTOR CAN PAY MORE

CONTRACTORS CAN VARY THE AMOUNTS PAID FOR WAGES AND BENEFITS AS LONG AS THE EMPLOYEE RECEIVES THE FULL AMOUNT DUE

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DAVIS BACON ACT

WAGE RATES

THREE METHODS ARE NORMALLY USED TO MAKING FRINGE BENEFIT PAYMENTS

PAYMENT INTO UNION SPONSORED BENEFIT PLANS

PAYMENT BY CASH

PAYMENT INTO EMPLOYER FRINGE BENEFIT PLANS

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DAVIS BACON ACT

WAGE RATES

THE CONTRACTOR MUST REQUEST A DETERMINATION BY THE SECRETARY OF LABOR IF PLANS ARE NOT ADMINISTERED BY A THIRD PARTY.

DEDUCTIONS FROM WAGES REQUIRED BY LAW, FOR PREPAYMENT OF WAGES, REQUIRED BY COURT PROCESS, TO PROVIDE HEALTH CARE INSURANCE OR PENSIONS ARE COMMON DEDUCTIONS ALLOWABLE UNDER DBA.

CONTRACTORS MAY REQUEST PERMISSION FROM THE SECRETARY OF LABOR TO MAKE OTHER DEDUCTIONS.

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DAVIS BACON ACT

CLASSIFICATION

DAVIS-BACON WAGE RATES ARE BASED ON THE LOCATION OF THE PROJECT AND THE CLASSIFICATION OF WORK PERFORMED

CLASSIFICATION PRACTICES ARE THOSE USED BY THE CONTRACTORS WHOSE RATES PREVAILED IN THE WAGE DETERMINATION

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DAVIS BACON ACT

CLASSIFICATION

SIGNATORY CONTRACTOR PRACTICES APPLY WHEN UNION RATES PREVAIL. (EXAMPLES) FRY BROTHERS, FORT LEONARD WOOD WINDOW UNIT, LIVERMORE ELECTRICAL SUB.PRACTICES OF CONTRACTORS IN THE SURVEY APPLY WHEN NON-UNION RATES PREVAIL.

THE CONTRACTOR IS RESPONSIBLE TO PAY WAGES APPLICABLE TO THE PROPER CLASSIFICATION. GOOD JUDGEMENT WILL HOLD MISTAKES TO A MINIMUM

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DAVIS BACON ACT

CLASSIFICATION

THE CONTRACTING AGENCY OR DOL MAY DETERMINE A DIFFERENT CLASSIFICATION FROM THE CONTRACTOR’S SELECTION.

THE CONTRACTOR MAY USE DIFFERENT CLASSIFICATIONS FOR A SINGLE EMPLOYEE IF DIFFERENT WORK IS PERFORMED.

THE CONTRACTOR IS RESPONSIBLE TO KEEP ADEQUATE RECORDS TO SUPPORT THE CLASSIFICATIONS USED.

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DAVIS BACON ACT

CONFORMING RATES

ANY CLASSIFICATION USED THAT IS NOT LISTED ON THE WAGE DETERMINATION, MUST BE CONFORMED TO IT.

THE WORK MUST NOT BE PERFORMED BY AN EXISTING CLASSIFICATION IN THE WAGE DETERMINATION.

IT MUST BE USED BY THE CONSTRUCTION INDUSTRY IN THE AREA.

PROPOSED WAGES AND FRINGE BENEFITS MUST HAVE A REASONABLE RELATIONSHIP TO THOSE IN THE DETERMINATION.

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DAVIS BACON ACT CONFORMING RATES

PROPOSED CLASSIFICATIONS AGREED TO BY THE CONTRACTOR, THE EMPLOYEES OR THEIR REPRESENTATIVES AND THE CONTRACTING OFFICER HAVE A HIGH PROBABILITY OF BEING APPROVED.

SHOULD THE PARTIES DISAGREE, THE CONTRACTING OFFICER MUST SUBMIT ALL RECOMMENDATIONS FOR A DETERMINATION. APPROVAL IS LESS CERTAIN AND WILL TAKE LONGER.

THE CONTRACTOR IS REQUIRED TO PAY THE APPROVED RATE FOR ALL WORK PERFORMED IN THE CONFORMED CLASSIFICATION.

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DAVIS BACON ACT

APPRENTICES AND TRAINEES

THE EMPLOYMENT OF APPRENTICES AND TRAINEES AT RATES LESS THAN THOSE REQUIRED FOR CRAFTSMEN IS PERMITTED.

APPRENTICES MUST BE INDIVIDUALLY REGISTERED IN A PROGRAM APPROVED BY THE BUREAU OF APPRENTICESHIP AND TRAINING OR APPROVED STATE AGENCY.

TRAINEES MUST BE EMPLOYED AND INDIVIDUALLY REGISTERED IN A PROGRAM APPROVED IN ADVANCE BY DOL

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DAVIS BACON ACT


THE RATIO OF APPRENTICES AND TRAINEES MAY NOT BE GREATER THAN ALLOWED UNDER THEIR RESPECTIVE PROGRAMS.

UNREGISTERED APPRENTICES AND TRAINEES MUST BE PAID THE JOURNEYMAN RATE FOR THE WORK PERFORMED.

EXCESS APPRENTICES AND TRAINEES MUST BE PAID THE JOURNEYMAN RATE FOR THE WORK PERFORMED.

EVERY APPRENTICE AND TRAINEE MUST BE PAID AT THE APPROPRIATE LEVEL OF PROGRESS RATE IN THE APPRENTICE OR TRAINING PROGRAM.

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DAVIS BACON ACT


APPRENTICES AND TRAINEES SHALL BE PAID FRINGE BENEFITS SPECIFIED IN THEIR PROGRAMS. IF NONE ARE SPECIFIED, THEY SHALL BE PAID THE FULL JOURNEYMAN FRINGE BENEFITS.

ALL APPRENTICE AND TRAINEE RATES SHALL BE EXPRESS AS A PERCENTAGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMINATION.

SHOULD AN APPRENTICESHIP OR TRAINING PROGRAM HAVE APPROVAL WITHDRAWN BY THE DEPARTMENT OF LABOR, JOURNEYMAN RATES MUST BE PAID TO THE EMPLOYEES FOR WORK PERFORMED.

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DAVIS BACON ACT

DEFINITIONS

CONTRACT

LABOR STANDARDS

BUILDING OR WORK

CONSTRUCTION, PROSECUTION, COMPLETION, OR REPAIR

LABORER OR MECHANIC

APPRENTICE

TRAINEE

HELPER

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DAVIS BACON ACT

DEFINITIONS

EMPLOYEE

PUBLIC BUILDING OR PUBLIC WORK

SITE OF THE WORK (EXAMPLES) MIDWAY CONSTRUCTION, FT. LEONARD WOOD WAREHOUSE


THE TWO-YEAR STATUE OF LIMITATIONS APPLIES TO DAVIS-BACON PROJECTS

THE SIX-YEAR STATUE OF LIMITATIONS APPLIES TO PROJECTS UNDER THE "RELATED ACTS” INCLUDING ARRA

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DAVIS BACON ACT

ADMINISTRATION OF DAVIS-BACON

DEPARTMENT OF ENERGY

REORGANIZATION PLAN NO. 14 OF 1950 PROVIDED THE PRIMARY AUTHORITY AND RESPONSIBILITY FOR ADMINISTRATION AND ENFORCEMENT OF LABOR STANDARDS BELONGS TO THE CONTRACTING AGENCY.

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DAVIS BACON ACTADMINISTRATION

DAVIS-BACON ACT COVERAGE

THE CONTRACTING OR FUNDING AGENCY SHALL DETERMINE IF A CONTRACT IS COVERED UNDER DBA AND SUBJECT TO ITS PROVISIONS.

MOST CONTRACTS CLEARLY FALL WITHIN OR OUTSIDE OF DBA COVERAGE.

A THOROUGH KNOWLEDGE OF CONSTRUCTION AND ACTIVITIES TO BE PERFORMED UNDER A PROPOSED CONTRACT COUPLED WITH SOUND LOGIC AND JUDGEMENT WILL ASSURE A CORRECT DETERMINATION.

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DAVIS BACON ACT


CLOSE QUESTIONS WILL ALWAYS ARISE. THESE ARE MORE CRITICAL WHEN JURISDICTION BETWEEN THE "IN-HOUSE" WORKERS AND THE BUILDING TRADES IS THE ISSUE.

FAR CLAUSES 52.222-6 THROUGH 52.222-15 MUST BE INCORPORATED INTO ALL CONTRACTS FOR CONSTRUCTION IN EXCESS OF $2,000.

FAR CLAUSE 52.222-4 MUST BE INCLUDED IN ALL CONTRACTS IN EXCESS OF $100,000.

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DAVIS BACON ACT


IN A MIXED CONTRACT, THE CONTRACTING OFFICER SHALL IDENTIFY ITEMS OF CONSTRUCTION WORK TO WHICH THE CLAUSES APPLY.

THE APPROPRIATE DBA WAGE DETERMINATION(S) MUST BE INCORPORATED INTO THE SOLICITATION AND CONTRACT.

ANY MODIFICATION EFFECTIVE 10 OR MORE DAYS BEFORE BID OPENING MUST BE INCORPORATED. IF IT IS RECEIVED LESS THAN 10 DAYS, IT MAY BE INCORPORATED.

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DAVIS BACON ACT

DAVIS BACON COVERAGE

IF AN AWARD IS NOT MADE WITHIN 90 DAYS OF BID OPENING, THE MOST CURRENT MODIFICATION OF THE WAGE DETERMINATION MUST BE INCORPORATED INTO THE CONTRACT. (EXAMPLE) FISCHBACK & MOORE AT HEBER

EDUCATION OF CONTRACTORS AND POTENTIAL CONTRACTORS

LABOR STANDARDS MUST BE A TOPIC IN PRE BID MEETINGS.

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DAVIS BACON ACT

EDUCATION OF CONTRACTORS AND POTENTIAL CONTRACTORS

POTENTIAL CONTRACTORS SHOULD BE TOLD THAT PAYING PREVAILING RATES ALLOWS THEM TO HIRE COMPETENT EMPLOYEES AND ONLY THE HIGHEST QUALITY OF WORK WILL BE ACCEPTED.

LABOR STANDARDS SHOULD BE A TOPIC WITH CONTRACTORS PRIOR TO CONSTRUCTION AND DURING THE LIFE OF THE PROJECT.

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DAVIS BACON ACT

CERTIFIED PAYROLLS

SUBMITTED EACH WEEK BY THE PRIME CONTRACTOR TO THE CONTRACTING OFFICER.

MUST CONTAIN ALL INFORMATION REQUIRED BY DOL.

IF NOT SUBMITTED ON A TIMELY BASIS, THE CONTRACTING OFFICER MUST WITHHOLD FUNDS FROM THE CONTRACT.

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DAVIS BACON ACT

APPRENTICES

MUST BE INDIVIDUALLY REGISTERED IN AN APPROVED APPRENTICESHIP PROGRAM.

CERTIFICATION OF REGISTRATION MUST BE PROVIDED TO THE CONTRACTING OFFICER

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DAVIS BACON ACT

GUIDANCE

GUIDANCE FOR ENFORCEMENT ACTIVITIES IS CONTAINED IN

29 CFR SUBPART A

29 CFR PART 5,

FAR 22.406 THROUGH 22.406-13.

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DAVIS BACON ACT

ENFORCEMENT

PROJECT INSPECTOR INVESTIGATIONS

THESE ARE NOT FACT-FINDING INVESTIGATIONS. THEY ARE MONITORING OF LABOR STANDARDS OVER THE LIFE OF THE CONTRACT.

THE PROJECT INSPECTOR IS THE PERSON MOST ABLE TO EVALUATE THE DAY-TO-DAY COMPLIANCE OF THE CONTRACTOR.

THE PROJECT INSPECTOR MUST BE WELL INFORMED OF LABOR STANDARDS REQUIREMENTS.

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DAVIS BACON ACT

FUNCTIONS

INCLUDE INFORMATION IN DAILY INSPECTION REPORTS CONCERNING EMPLOYEES WORKING ON THE PROJECT.

SPOT-CHECK WEEKLY PAYROLLS AND TIME RECORDS.

TAKE EMPLOYEE INTERVIEWS.

COMPARE INFORMATION FROM ALL SOURCES CONCERNING LABOR STANDARDS REQUIREMENTS.

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DAVIS BACON ACT

FUNCTIONS

HAVE THE CONTRACTOR CORRECT MINOR ERRORS.

REPORT SERIOUS VIOLATIONS WITH AS MUCH INFORMATION AS POSSIBLE TO CONTRACTING OFFICER.

TAKE EMPLOYEE COMPLAINTS.

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DAVIS BACON ACT

WITHHOLDING OF FUNDS

THE CONTRACTING OFFICER SHALL WITHHOLD FUNDS IF THE CONTRACTOR FAILS TO PROMPTLY SUBMIT CERTIFIED PAYROLLS.

FORMAL INVESTIGATIONS

THE CONTRACTING OFFICER IS RESPONSIBLE TO CONDUCT FORMAL INVESTIGATIONS. THE FUNCTION MAY DELEGATED BUT NOT THE RESPONSIBILITY.

THESE WILL INVOLVE SUFFICIENT FACT FINDING TO DETERMINE THE STATUS OF COMPLIANCE OF THE CONTRACTOR AND TAKE APPROPRIATE ACTION.

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DAVIS BACON ACT


FUNCTIONS

EXAMINE THE CONTRACT AND AVAILABLE RECORDS

CHECK ON APPRENTICESHIP AND CONFORMANCE REQUIREMENTS

TRANSCRIBE RECORDS AS NECESSARY

IF POSSIBLE, THE ABOVE SHOULD BE COMPLETED PRIOR TO MEETING WITH THE CONTRACTOR

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DAVIS BACON ACT


OPEN THE INVESTIGATION WITH THE CONTRACTOR. ADVISE THE CONTRACTOR WHAT YOU WILL DO.

OBTAIN IDENTIFICATION INFORMATION OF THE CONTRACTOR, RESPONSIBLE OFFICIALS AND SUBCONTRACTORS IF NEEDED.

EXAMINE ADDITIONAL RECORDS SUCH AS INDIVIDUAL PAYROLL RECORDS, TIME BOOKS, LOGS OF WORK PERFORMED ON THE PROJECT.

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DAVIS BACON ACT


CONDUCT EMPLOYEE INTERVIEWS. THESE SHOULD COVER ALL CRAFTS. CURRENT EMPLOYEES CAN BE INTERVIEWED ON THE PROJECT. FORMER EMPLOYEES MAY BE A NECESSARY SOURCE OF INFORMATION.

EMPLOYEES MAY BE ADVISED ABOUT PROVISIONS OF THE LAW AND THEIR RIGHTS. THEY CANNOT BE ADVISED OF INFORMATION FROM THE EMPLOYERS RECORDS OR OTHER EMPLOYEE INTERVIEWS

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DAVIS BACON ACT


CONCLUDE THE INVESTIGATION WITH THE CONTRACTOR. ADVISE THE CONTRACTOR OF VIOLATIONS DISCLOSED, CORRECTIVE ACTION REQUIRED AND RESTITUTION DUE EMPLOYEES. ADVISE THE CONTRACTOR THAT LIQUIDATED DAMAGES MAY BE ASSESSED IF CWHSSA VIOLATIONS WERE DISCLOSED.

SETTLEMENT OF THE INVESTIGATION BY RESTITUTION TO THE EMPLOYEES IS THE MOST COMMON CONCLUSION IF DISPUTES DO NOT EXIST. COMPUTATIONS MADE BY THE CONTRACTOR MUST BE REVIEWED BY THE AGENCY. ANY RESTITUTION NOT PAID TO EMPLOYEES MUST BE PAID TO THE GOVERNMENT.

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DAVIS BACON ACT


AN INVESTIGATION REPORT MUST BE SUBMITTED TO DOL IF UNDERPAYMENT OF $1,000 OR MORE IS DISCLOSED.

Withholding of Funds

THE CONTRACTING OFFICER SHALL WITHHOLD FUNDS IF THE CONTRACTOR FAILS TO PROMPTLY SUBMIT CERTIFIED PAYROLLS.

THE CONTRACTING OFFICER MUST WITHHOLD FUNDS IF A CONTRACTOR REFUSES TO MAKE RESTITUTION OR ASSURE FUTURE COMPLIANCE.

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DAVIS BACON ACT

Withholding of Funds

FUNDS MAY BE WITHHELD FROM ANY CONTRACT HELD BY THE SAME PRIME CONTRACTOR

EXCESS FUNDS WITHHELD MAY BE RETURNED TO THE CONTRACTOR. DOL MUST APPROVE ANY RETURN OF FUNDS THAT WERE WITHHELD AT ITS REQUEST.

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DAVIS BACON ACT


A TWO-YEAR STATUTE OF LIMITATIONS APPLIES TO DBA.

A SIX YEAR STATUTE OF LIMITATIONS APPLIES TO CWHSSA AND THE RELATED ACTS, INCLUDING THE AMERICAN RECOVERY AND EN REINVESTMENT ACT OF 2009

THESE LIMITATIONS DO NOT APPLY TO ADMINISTRATIVE PROCEEDINGS WITHIN THE DEPARTMENT OF LABOR

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DAVIS BACON ACT

TYPES OF VIOLATIONS

MISCLASSIFICATION OF EMPLOYEES

INCORRECT USE OF APPRENTICES AND TRAINEES

USE OF EMPLOYEES NOT SHOWN ON CERTIFIED PAYROLLS

REDUCTION OR BANKING OF HOURS

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DAVIS BACON ACT

TYPES OF VIOLATIONS

REDUCING BENEFIT PAYMENTS (DIVERTING FUNDS)

CONSIDERING WORK NOT SUBJECT TO DBA REQUIREMENTS

FALSIFICATION

EXCESSIVE FRINGE BENEFIT PAYMENTS

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DAVIS BACON ACT

PERFORMANCE OF DUTIES

THE CONTRACTING OFFICER MAY DELEGATE RESPONSIBILITIES WITHIN THE AGENCY.

THESE DUTIES MAY ALSO BE PERFORMED BY AN INDEPENDENT CONTRACTOR AS LONG AS FINAL DETERMINATIONS ARE MADE BY THE CONTRACTING OFFICER.

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DAVIS BACON ACT

DEPARTMENT OF LABOR

REGULATIONS

THE FIRST OBLIGATION OF DOL IS TO ESTABLISH STANDARDS AND WRITE REGULATIONS FOR THE ADMINISTRATION OF LABOR STANDARDS. THESE REGULATIONS HAVE WITHSTOOD MOST CHALLENGES.

INVESTIGATIONS

DOL CONDUCTS INVESTIGATIONS UNDER DBA AND CWHSSA INDEPENDENT OF THE CONTRACTING AGENCY.

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DAVIS BACON ACT

REGULATIONS

DOL MAY ASSIST OR COOPERATE WITH THE CONTRACTING AGENCY IN AN INVESTIGATION. IT WILL NOT DO IT FOR YOU UNLESS THERE IS A COMPELLING REASON FOR IT DO SO.

DOL IS REQUIRED TO NOTIFY THE CONTRACTING AGENCY OF AN INVESTIGATION ON ITS PROJECTS. THE CONTRACTING AGENCY CAN REQUEST TO DO THE INVESTIGATION AND DOL MUST ALLOW IT.

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DAVIS BACON ACT

APPEALS PROCEDURES

DOL CONDUCTS ADMINISTRATIVE LAW JUDGE OR ADMINISTRATIVE REVIEW BOARD HEARING ON DISPUTES. THESE MAY BE REQUESTED BY ANY INTERESTED PARTY. MOST ARE REQUESTED BY CONTRACTORS OR THE ADMINISTRATOR OF THE WAGE & HOUR DIVISION.

DBA ISSUES ARE NOT SUBJECT TO THE DISPUTES CLAUSE OF THE CONTRACT.

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DAVIS BACON ACT

AREA PRACTICE SURVEYS

CONDUCTED TO RESOLVE CLASSIFICATION DISPUTES.

LIMITED TO SIMILAR PROJECTS IN THE COUNTY WHERE THE PROJECT IS LOCATED. IT CAN BE EXPANDED IF NEEDED.

IF A MAJORITY OF EMPLOYEES ARE FROM ONE CRAFT, THAT CLASSIFICATION MUST BE USED. IF NO MAJORITY EXISTS, THE CONTRACTOR MAY DETERMINE THE CRAFT USED.

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labor standards legislation

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