LABOR STANDARDS
LEGISLATION
Page Erickson
Sharon Ruehl
June 2009
1
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
2
INTRODUCTION CON’T
TYPE OF LEGISLATION
PROTECTIVE -- REMEDIAL
COVERAGE IS INTERPRETED BROADLY
EXEMPTIONS ARE INTERPRETED NARROWLY
RESPONSIBILITY
ALL RESPONSIBILITY IS ON THE EMPLOYER
3
CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
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.
4
CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
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.
5
CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
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
6
CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
LIQUIDATED DAMAGES
ASSESSMENT IN THE AMOUNT OF $10 PER DAY
FOR EACH EMPLOYEE WHO IS NOT PROPERLY COMPENSATED
THE HEAD OF THE CONTRACTING AGENCY MAY REVIEW
THE 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
7
CONTRACT WORK HOURS AND SAFETY
STANDARDS ACT
STATUTE OF LIMITATIONS
THE SIX YEAR STATUTE OF LIMITATIONS FOR
CONTRACT ACTIONS IS APPLICABLE TO CWHSSA.
8
COPELAND ACT
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.
9
COPELAND ACT
ADMINISTRATION
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.
10
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.
11
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.
STATUTE OF LIMITATIONS
TWO YEARS AS IT IS APPLICABLE TO DAVIS-BACON ACT.
12
THE MILLER ACT
APPLICATION
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.
13
THE MILLER ACT
STATUTE OF LIMITATIONS
TWO YEARS AS IT IS APPLICABLE TO DAVIS-BACON ACT.
14
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
15
DAVIS BACON ACT
PROVISIONS
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
16
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.
17
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
18
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
19
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.
20
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
21
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
22
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
23
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.
24
DAVIS BACON ACT
APPLICATION OF WAGE DETERMINATIONS
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.
25
DAVIS BACON ACT
APPLICATION OF WAGE DETERMINATIONS
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 FOLLOWON CONSTRUCTION.
26
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
27
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
28
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
29
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.
30
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
31
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
32
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.
33
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
34
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
35
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.
36
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.
37
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.
38
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
39
DAVIS BACON ACT
APPRENTICES AND TRAINEES
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.
40
DAVIS BACON ACT
APPRENTICES AND TRAINEES
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.
41
DAVIS BACON ACT
DEFINITIONS
CONTRACT
LABOR STANDARDS
BUILDING OR WORK
CONSTRUCTION, PROSECUTION, COMPLETION, OR REPAIR
LABORER OR MECHANIC
APPRENTICE
TRAINEE
HELPER
42
DAVIS BACON ACT
DEFINITIONS
EMPLOYEE
PUBLIC BUILDING OR PUBLIC WORK
SITE OF THE WORK (EXAMPLES) MIDWAY CONSTRUCTION,
FT. LEONARD WOOD WAREHOUSE
STATUTE OF LIMITATIONS
THE TWO-YEAR STATUE OF LIMITATIONS APPLIES TO DAVISBACON PROJECTS
THE SIX-YEAR STATUE OF LIMITATIONS APPLIES TO PROJECTS
UNDER THE "RELATED ACTS” INCLUDING ARRA
43
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.
44
DAVIS BACON ACT
ADMINISTRATION
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.
45
DAVIS BACON ACT
DAVIS-BACON ACT COVERAGE
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.
46
DAVIS BACON ACT
DAVIS-BACON ACT COVERAGE
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.
47
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.
48
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.
49
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.
50
DAVIS BACON ACT
APPRENTICES
MUST BE INDIVIDUALLY REGISTERED IN AN APPROVED
APPRENTICESHIP PROGRAM.
CERTIFICATION OF REGISTRATION MUST BE PROVIDED TO
THE CONTRACTING OFFICER
51
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.
52
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.
53
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.
54
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.
55
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.
56
DAVIS BACON ACT
FORMAL INVESTIGATIONS
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
57
DAVIS BACON ACT
FORMAL INVESTIGATIONS
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.
58
DAVIS BACON ACT
FORMAL INVESTIGATIONS
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
59
DAVIS BACON ACT
FORMAL INVESTIGATIONS
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.
60
DAVIS BACON ACT
FORMAL INVESTIGATIONS
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.
61
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.
62
DAVIS BACON ACT
STATUTE OF LIMITATIONS
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
63
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
64
DAVIS BACON ACT
TYPES OF VIOLATIONS
REDUCING BENEFIT PAYMENTS (DIVERTING FUNDS)
CONSIDERING WORK NOT SUBJECT TO DBA REQUIREMENTS
FALSIFICATION
EXCESSIVE FRINGE BENEFIT PAYMENTS
65
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.
66
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.
67
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.
68
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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