DOL Releases Comprehensive Davis-Bacon Proposal                     

 First Update in 40 Years to DBRA Regulations 

Last week, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) officially released a proposed rule to significantly revise the regulations implementing the Davis-Bacon Act and its prevailing wage. This 40-year awaited update reverts to the pre-1983 methodology for determining whether a wage rate is prevailing, also referred to as the “30 percent rule”. The rule also significantly revises its “site of work” provisions along with its survey data and wage determination collection and processes that would allow WHD to use a broader data set (geographically) than they currently utilize. The rule does provide some relief to highway projects that cover multiple counties and wage determinations and proposes the ability to automatically update non-collectively bargained rates that are 3 or more years old.

Specially the proposals include, but are not limited to:

• Creating several shortcuts in the prevailing wage update system.

• Returning to the definition of “prevailing wage” used from 1935 to 1983.

• Periodically updating prevailing wage rates to address out-of-date wage determinations in some instances.

• Providing broader authority to adopt state or local wage determinations when certain criteria is met.

• Issuing supplemental rates for key job classifications when no survey data exists.

• Highlighting worker protections and enforcement, including debarment and anti-retaliation.

The Davis-Bacon Act and 71 Related Acts collectively apply to an estimated $217 billion in federal and federally assisted construction spending per year and provide minimum wage rates for an estimated 1.2 million U.S. construction workers.

Back in 2015, OCA’s national affiliate, AGC of America created a task force that developed a comprehensive list of considerations for Davis-Bacon reform, which has been subsequently shared with DOL WHD. AGC also met with WHD directly in the pre-rulemaking period last summer to provide further stakeholder input. Now that the proposal has been released publicly, AGC of America is reviewing the 432-page proposed rule and will seek input to prepare comprehensive comments.

OCA will be working closely with AGC on the changes as well as industry input. We will continue to update our membership on more specific interpretations of DOL’s changes as they become available. If you have any questions or concerns, please contact Mark Potnick in OCA’s office.