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Construction
Additional Resources to Davis-Bacon Act/Davis-Bacon
Related Acts
The U.S. Department of Labor Davis-Bacon Resource Book (dated
11/2002), which can be accessed at
http://www.wdol.gov/docs/WRB2002.pdf
Final Rule published in the Federal Register on December 20, 2000,
65 FR 80268-80278, including a section focused on
"Coverage of
Transportation -§ 5.2(j)" on pages 80275-6), accessible at:
http://www.dol.gov/_sec/regs/fedreg/final/2000032436.pdf
Q 1. Does it matter who employs the truck driver for the application of Davis Bacon?
Answer:
No. In the decision reached in Building and Construction Trades
Dept. v. Midway, decided on May 17, 1991, the Court of Appeals for
the District of Columbia Circuit held that language in Department of
Labor (DOL) regulation was inconsistent with the Davis-Bacon Act.
That case involved truck driver employees of the prime contractor's
wholly owned subsidiary, who were delivering materials from a
commercial supplier to the construction site. The material delivery
truck drivers spent ninety percent of their workday on the highway
driving to and from the commercial supply sources, ranging up to 50
miles round trip and stayed on the site of the work only long enough
to drop off their loads, usually for not more than ten minutes at a
time. At issue before the D.C. Circuit was whether the "material
delivery truck drivers" were within the scope of construction as
defined by the regulatory provision then in effect at 29 CFR 5.2(j).
The Court of Appeals ruled that material delivery truck drivers, who
come onto the site of the work merely to drop off construction
materials, are not covered by the Davis-Bacon Act even if they are
employed by the government contractor, because they are not
"employed directly upon the site of the work". Subsequent Appeals
Court rulings in two other cases further addressed the scope of the
"site of the work". In a Final Rule published in the Federal
Register on December 20, 2000, 65 FR 80268-80278, the Department of
Labor issued revised regulatory definitions of the terms "site of
the work" and "construction".
Q 2. Are truck drivers employed by a construction prime contractor to transport materials from the contractor plant or yard to a Davis-Bacon covered project, or from a Davis-Bacon covered project to the contractor's plant or yard covered?
Answer:
Yes. If the contractor/subcontractor's plant or yard is part of the
"site of the work", the drivers are covered. If the
contractor/subcontractor's plant or yard is not part of the "site of
the work", the drivers are generally not covered. The travel time
between the plant or yard and the site of work in this instance is
never covered. However, if the time spent unloading the material or
equipment on the site of work is more than de minimis (20%), then
this time is covered.
Q 3. Is the time drivers spend transporting materials or equipment from one Davis-Bacon project to another Davis-Bacon project covered?
Answer:
Generally, no. Again the regulatory definition of "construction …"
specifically states that the transportation of materials or supplies
to or from the "site of the work" is not considered construction
(29 CFR 5.2(l)(2). Nevertheless, there may be some instances where
the two sections of highway construction are contiguous and the
transportation of materials or equipment is all on the "site of the
work" of both sections that constitute a combined covered project.
Q 4. Are drivers transporting material or equipment away from a Davis-Bacon project or another project of the contractor which is not a Davis-Bacon project covered?
Answer:
No. Unless the transportation of such materials or equipment is to a
dedicated facility located adjacent or virtually adjacent to the
construction area.
Q 5a. When truck drivers are engaged in hauling excavated material, debris, dirt, asphalt, etc., for recycling away from a Davis-Bacon covered construction site, is the time spent loading at the site covered?
Answer:
Assuming that the location or facility to which the excavated
material or debris will be transported is not a facility that is
part of the "site of the work" (adjacent or virtually adjacent to
the construction work area: and dedicated exclusively or nearly so
to the performance of the contract or project): If the time spent on
the site is not more than de minimis, then loading the debris, dirt,
asphalt, etc., is not covered.
Q 5b. When truck drivers are engaged in hauling excavated material, debris, dirt, asphalt, etc., for recycling away from a Davis-Bacon covered construction site, is the time transporting the material away from the site covered?
Answer:
The time transporting the material away from the covered site is not
covered. The regulation specifically states that the transportation
of materials or supplies to or from the "site of the work" is not
considered construction.
Q 5c. When truck drivers are engaged in hauling excavated material, debris, dirt, asphalt, etc., for recycling away from a Davis-Bacon covered construction site, is the time unloading the material covered?
Answer:
The time unloading the material off site is not covered. Davis-Bacon
only applies to work done on the "site of the work".
Q 6. Are truck drivers who are employed by an independent contractor or bona fide materialman to haul material to a covered project from a non-covered supply source (i.e., sand or gravel pit, asphalt plant serving the public in general) covered?
Answer:
No. If the material source is commercial in nature and supplies the
general public, then the drivers are generally not covered. However
if the time spent on the site of work is more than de-minimis (20%of
the truck driver's work week), the driver would be covered.
(regardless of whether they are employed by the contractor or
subcontractor, or by an independent contractor or bona fide
materialman/supplier).
Q 7. Are truck drivers covered for the delivery of materials to the "site of work" from covered supply sources (e.g., batch plants or borrow pits, stockpiles, etc.) which have been established to serve exclusively, or nearly so, the covered project?
Answer:
Yes. If the supply facility is part of the “site of the work”
because it is dedicated (exclusively or nearly so) to performance of
the contract or the project and located within or near the project
limits – “adjacent or virtually adjacent” to the actual construction
site.
Q 8. A barricading company supplies traffic control products for 20 Davis-Bacon projects. The devices are dropped off and picked up at the contractor's yard for each project. No setup work is involved. Are the employees of this company covered?
Answer:
Generally no. If the contractor’s yard is not deemed a part of the
“site of work”, the employees are not covered. However, if the
contractor’s yard is deemed a part of the “site of work”, then the
employees would be covered if the time spent on each project is more
than 20% of their work week.
Q 9. Would these workers be covered if they are not only involved in drop off/pick up, but are also involved in setting up and servicing the traffic control products?
Answer:
A 9. Yes. If a material supplier, manufacturer, or carrier
undertakes to perform part of a construction contract as a
subcontractor, its laborers and mechanics employed at the site of
the work are subject to the prevailing wage requirements under
Davis-Bacon in the same manner as those employed by any other
contractor or subcontractor.
Q 10. What prevailing wage rate would apply to the workers in the above example?
Answer:
The employees driving the trucks would be paid truck drivers rates.
The employees doing the servicing would be paid at the unskilled or
misc. laborers rate. If the driver is doing both activities,
Davis-Bacon compliance can be achieved by payment of the higher rate
for all hours worked. However, laborers or mechanics performing work
in more than one classification may be compensated at the rate
specified for each classification for the time actually worked in
each, provided that the employer's payroll records accurately set
forth the time spent in each classification in which work is
performed.
Q 11. A barricading company places the advance warning signs per contract, pounds posts, and places a sign cover which the prime contractor removes when construction begins. Is all the work performed by this company now subject to Davis Bacon?
Answer:
The USDOL position is that if this is a one time incident, before
construction begins, and the time spent on the site of work is
minimal (less than 20% of the employee’s work week) then in this
instance, the installation of the advance warning signs will not be
covered by Davis-Bacon.
Q 12.
Prior to the start of construction, a barricading company places
into position and turns on a portable changeable message sign per
the contract.
What Davis Bacon rules apply to this situation?
Answer:
Again if this is a one time situation before construction begins,
and the time spent on the site of work is minimal, (less than 20% of
the employee’s work week) then Davis-Bacon would not apply in this
situation.
Q 13. On the same or the next day, this company sets the drums and temporary signs along the shoulder of the road for the prime to set into position when construction begins. What are the Davis-Bacon rules for this situation?
Answer:
When temporary signs and drums are placed along the shoulder of the
road for later placement per the contract, Davis-Bacon does not
apply, if the total time spent on the project is not more than 20%.
Q 14. Does it matter if the barricading company is working with a sub-contract or a purchase order, for the purposes of applying Davis-Bacon rules?
Answer:
No. Sub-contract status is irrelevant for the purposes of
Davis-Bacon.
Q 15. The manufacturer of concrete box beams delivers 10 beams to a Davis-Bacon covered project. After beams are set and the manufacturer sends a technician out to the project to post tension the beams. Is the post tensioning of the beams covered?
Answer:
For purposes of administration and enforcement of Davis-Bacon, under
the applicable regulations issued by the Department of Labor, the
regulatory definition of "construction" includes "[m]anufacturing or
furnishing of materials, articles, supplies or equipment on the
site…", as well as the installation of items fabricated off-site.
(See 29 CFR 5.2(l)). As discussed regarding item 8, if a material
supplier, manufacturer, or carrier undertakes to perform part of a
construction contract as a subcontractor, its laborers and mechanics
employed at the site of the work are subject to the prevailing wage
requirements under Davis-Bacon in the same manner as those employed
by any other contractor or subcontractor. For example, employees of
a materials supplier who are required to perform more than an
incidental amount of construction work in any workweek at the site
of the work would be covered by Davis-Bacon and due the applicable
wage rate for the classification of work performed. For enforcement
purposes, the Department of Labor adopts a policy that if such an
employee spends more than 20% of his/her time in a workweek engaged
in such activities on the site, he/she is covered by Davis-Bacon for
all time spent on the site during the workweek.
Q 16. The
contractor hires a company to provide inspection services for the
contractor's quality control operations on a Davis-Bacon covered
project.
Are the inspectors subject to prevailing wages?
Answer:
In general, individuals who perform inspections and testing for
quality control purposes are not considered laborers or mechanics
within the meaning of the Davis-Bacon Act. However, if an employee
spends more than 20% of a workweek performing manual, physical and
mechanical functions that are normally performed by traditional
craftsmen, he/she would be considered laborers and mechanics and
covered by the DBRA and due the applicable wage rate for the
classification of work performed.
Q 17. The
contractor hires an engineering firm to provide surveying and
staking activities for a Davis-Bacon covered project.
Are these
workers subject to prevailing wages?
Answer:
Where surveying is performed immediately prior to and during actual
construction, in direct support of construction crews, such activity
is covered by Davis-Bacon requirements for laborers and mechanics.
The determination of whether certain members of survey crews are
laborers or mechanics is a question of fact. Such a determination
must take into account the actual duties performed. As a general
matter, an instrumentman or transitman, rodman, chainman, party
chief, etc., are not considered laborers or mechanics. However, a
crew member who primarily does manual work, for example, clearing
brush, is a laborer and is covered for the time so spent.
Q 18. Does Davis Bacon apply to warranty work?
Answer:
If a material supplier, manufacturer or carrier undertakes to
perform a part of a construction contract as a subcontractor, its
laborers and mechanics employed at the site of the work would be
subject to DBRA requirements in the same manner as those employed by
any other contractor or subcontractor. This would include warranty
and/or repair work. Employees of a material supplier who are
required to perform more than an incidental amount of construction
work (20%) in any workweek at the site of the work would be covered
by the DBRA and due the applicable wage rate for the classification
of work performed.
Q 19. How
are truck drivers covered on "split-trip" operations where a portion
of the trip meets the criteria for DBRA coverage and the
other
portions of the trip do not.
Answer:
DBRA coverage is for "laborers and mechanics" for time "employed on
the 'site of the work'". If the truck driver spends more than de-minimis
(20%) of their work week on the site of work, the time he is on the
site of work is covered by Davis-Bacon.
