Davis-Bacon Prevailing Wages - Types of Employees
Davis-Bacon Prevailing Wages - Types of Employees
Definition of laborers and mechanics.
The terms “laborer” and “mechanic” are defined in 29 CFR 5.2(m) and generally include workers whose duties are manual or physical in nature as distinguished from mental or managerial and include apprentices, trainees, and helpers (in the case of CWHSSA. The terms do not apply to workers whose duties are primarily administrative, executive, professional, or clerical, rather than manual. Generally, mechanics are considered to include any worker who uses tools or who is performing the work of a trade. The DBA requires payment of the applicable prevailing wage rate to all laborers and mechanics “regardless of any contractual relationship which may be alleged to exist.”
- An apprentice (see 29 CFR 5.2(n)(1)) is (1) any person employed under a bona fide apprenticeship program registered with a state apprenticeship agency which is recognized by the DOL Employment and Training Administration (ETA), Office of Apprenticeship Training, Employer and Labor Services (OA), or if no such recognized agency exists in a state, under a program registered with the OA itself; or (2) a person in the first 90 days of probationary employment as an apprentice in such an approved apprenticeship program who is not individually registered in the program, but who has been certified by OA or a state apprenticeship agency (as appropriate) to be eligible for probationary employment as an apprentice. All apprentices other than probationary apprentices must be individually registered in the approved program. Consistent with the level of training in the program, an apprentice will perform for the appropriate period of time all levels of work, from the lowest unskilled laborer’s work to the highest skilled or craft work of the finished mechanic, under the supervision of the journeyworker. To be employed in compliance with the regulations the following guidelines must be observed:
- Allowable ratio: apprentices to journeyworkers
- The allowable ratio of apprentices to journeyworkers employed on the contract work in any craft classification will not be greater than the ratio permitted the contractor as to the entire work force under the registered program. See 29 CFR 5.5(a)(4)(i). The allowable ratio is to be applied on a daily basis. If a contractor has both an apprentice and a trainee program, the trainees must be counted together with the apprentices in determining compliance with the allowable ratio (i.e., the journeyworkers may not be counted twice).
- For the purpose of illustration only, assume that a contractor is allowed a ratio of one apprentice to every three journeyworkers under the terms of the approved plan. This same ratio would apply on DBRA covered jobs. Thus, in this example, the allowable number of apprentices is illustrated by the following chart:
- Recognizing that the DBRA work may be performed in a location other than the place where the program registration was initially made, the allowable ratio is the ratio specified in the contractor’s or subcontractor’s registered program (see 29 CFR 5.5(a)(4)(i)).
- A working supervisor or owner may be counted as a journeyworker for ratio purposes provided such a worker spends the majority of his or her time in the craft, at the site.
- In determining the proper ratios, bootstrapping is not allowed. For example, if an employer has employees who are misclassified and determined to be entitled to the journeyworker’s rate or has utilized an excessive number of apprentices who are also entitled to the journeyworker’s rate, such employees cannot then be counted as journeyworker for ratio purposes.
- Registered apprentice ratio exceeded
- Evidence of bona fide apprenticeship registration
- Unregistered apprentices
- Employment of apprentices by more than one employer
- Wage computations for apprentices
Journeyworkers Allowable Apprentices
Note: the ratios are applied in terms of whole number increments for the journeyworkers (as reflected in the preceding chart) and not in terms of fractions thereof, unless a different standard is specified in the approved plan. Also, the allowable ratio will vary from plan to plan.
If a contractor or subcontractor employs apprentices in such a number that the permissible ratio is exceeded, all apprentices employed in excess of the ratio are considered to have been improperly employed and will be entitled to the rate for the classification of work which they are performing. For example, if an employer is permitted to employ three apprentices under an approved plan and it is disclosed that the employer is employing five apprentices on the project, the first three apprentices employed on the project will be considered within the quota; the last two employed will be considered improperly employed and must be paid the full prevailing wage rate for the work performed. As a practical matter, if it is impossible to determine which apprentices were first employed on the project, any equitable formula for allocating the time due at the applicable prevailing wage rate will be acceptable. For example, in the preceding situation, it would be permissible and equitable to rotate three of the five apprentices each week as a solution to the problem of which of these employees were first employed on the project. The remaining two employees would then be allocated the full prevailing wage rate in a manner which distributes the time improperly employed as equally as possible.
29 CFR 5.5(a)(3)(i) requires that a contractor or subcontractor utilizing apprentices maintain written evidence of the registration of the program and the apprentices, and of the ratios and wage rates prescribed in the applicable programs.
29 CFR 5.5(a)(4)(i) provides that any employee listed on a payroll at an apprentice wage rate who is not a bona fide registered or probationary apprentice must be paid the wage rate for the classification of work actually performed. However, the fact that a worker is listed on the payrolls as an apprentice in a particular craft and paid an apprentice wage rate for that craft does not, in itself, mean that person performed only the work of, or used only the tools of, the craft in which the person is an unregistered apprentice, and it does not mean that the worker must be compensated only at the contract rate for that craft classification. Such an employee may actually be performing work as a laborer or in another craft classification, and must receive at least the rate applicable for the classification(s) of work actually performed.
Employment of a properly registered apprentice by more than one employer does not affect his/her status. The transfer of apprentices from one employer to another to provide varied work and training is an accepted construction industry practice.
In some instances, bona fide apprenticeship programs contain percentages which are applied to a stipulated wage rate (i.e., stated in the approved apprenticeship program or set forth in a collective bargaining agreement), the product of which results in the wage rate paid to the apprentice. While such a computation is acceptable on construction projects not subject to the DBRA, the contractor on covered projects is bound by any higher wage rates in the wage determination and the percentages should be computed against the journeyworker’s basic rate found in the wage determination. Some apprenticeship agreements may specify dollar amounts, rather than percentages of the journeyworker’s rate, for various levels of progress. For this type of apprenticeship training program, in order to determine whether the apprentice is properly paid it is necessary to convert the dollar amounts to a percentage of the journeyworker’s basic rate in the training program. This is then applied to the rate specified in the wage determination. For example, where the journeyworker’s rate contained in the apprenticeship training program for a particular craft is $16.00 per hour and the apprentices are to receive $8.00, $10.00, $12.00, or $14.00, depending on their level of progress, the percentages to be applied against the journeyworker’s rate in the wage determination should be 50%, 63%, 75%, and 88%, respectively. In addition, the apprentices are also entitled to receive fringe benefits in accordance with the provisions of the apprenticeship program. If the approved program is silent as to fringe benefits, apprentices must be paid the full amount of fringe benefits listed in the wage determination for their classification, unless the Administrator of the WHD (Administrator) determines that a different practice prevails in the locality of the construction project for that particular apprentice classification.
- A trainee (see 29 CFR 5.2(n)(2)) is any person who is receiving on-the-job training in a construction occupation under a program which has received prior approval (or prior recognition for certain programs established prior to August 20, 1975), as evidenced by formal certification of the approval (or recognition) by OA. State apprenticeship agencies have no authority over trainee programs. See 29 CFR 5.2(n), 29 CFR 5.5(a)(4)(ii), and 29 CFR 5.16, -.17.)
- A trainee must be paid at the rate specified in the program for his/her level of progress, expressed as a percentage of the journeyworker hourly rate specified in the applicable wage determination. Also, trainees are to be paid the fringe benefits stipulated in the trainee program. If the program does not mention fringe benefits, trainees must receive the fringe benefits reflected on the wage determination for the craft.
- The principles set forth in "Apprntices" regarding allowable ratio, ratio exceeded, evidence of apprenticeship, unregistered apprentices, employment by more than one employer, and wage computations for apprentices are applicable to trainees. Exception: portability does not apply to trainees.
- A contractor employing participants under the Workforce Improvement Act of 1998 (which superseded the Job Training Partnership Act and amended the Wagner-Peyser Act) on a DBRA covered contract must pay such individuals the applicable prevailing wage rate for the classification of work performed unless the requirements in 29 CFR 5.5(a)(4)(ii) have been met and the particular training program has been approved by ETA (OA).
- There are a number of ETA on-the-job training programs (for example, the Step-up program) established to train and hire the unemployed. Unless the requirements of 29 CFR 5.5(a)(4) are met, individuals enrolled in such programs must be paid the applicable prevailing wage rate for the classification of work performed on covered DBRA work.
- The requirements of 29 CFR 5.5(a)(4)(i) and (ii) do not apply to apprentices and trainees performing on federal-aid highway construction contracts subject to 23 USC 113 and enrolled in programs certified by the Secretary of the Department of Transportation, because they are specifically exempted from DBRA by the Federal-Aid Highway Act. See 23 USC 113(c).
Note: an exception to this rule applies if the Administrator determines that there is a corresponding apprenticeship program providing for less than full fringe benefits for apprentices in that particular classification, in which case fringe benefits must be paid trainees in accordance with the corresponding apprenticeship program. See 29 CFR 5.5(a)(4)(ii).
Summer youth employment.
- Under the guidelines set forth in AAM No. 71 and AAM No. 96, DOL will take no exception to the practice of paying less than the predetermined laborer or journeyworker’s rate to bona fide students employed on a temporary basis for the summer months only if the employment is part of a bona fide youth opportunity program such as that sponsored by union and management or by a governmental or community group. Also, such employment must be in accordance with statutory age and minimum wage requirements. Sponsorship by an individual contractor for only one particular project would not qualify for the exception.
- The specific provisions of any such agreement between the contractor and the contracting agency and the rates of pay are to be in writing, and a report of the reclassification is to be submitted to the Administrator by the contracting agency.
Federal youth and student programs.
Section 4 of the DBA 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.”
The authorizing statutes for the Youth Conservation Corps, 16 USC 1703(a)(3), and the Public Land Corps, 16 USC 1726, for example, specifically require the Secretaries of Interior and Agriculture to set the rates of pay or living allowances for the corps’ participants. Other youth programs, such as the American Conservation and Youth Service Corps (AmeriCorps), 42 USC 12655, and Volunteers in Service to America, 42 USC 4955, specify in the statutory language the living allowances and other benefits that must be provided to each participant. In accordance with section 4 of the DBA, participants in federal youth programs that establish specific compensation to be given participants would not be covered by DBA labor standards.
The term helper is defined in 29 CFR 5.2(n)(4). Helpers are permitted on a DBRA contract only if the helper classifications are specified in the applicable wage determination or conformed rates are approved pursuant to 29 CFR 5.5(a)(1)(ii). Helper classifications will be issued or approved only where the helper classification in question constitutes a separate and distinct class of worker whose use is prevailing in the area, and whose scope of duties does not overlap those of another classification (journeyworker or laborer). A helper may not be used as an informal apprentice or trainee, and it is not permissible for helpers to use tools of the trade in assisting a journeyworker. See 65 FR 69674, November 20, 2000.
Air balance engineers.
In general, air balance engineers are not considered laborers or mechanics within the meaning of the DBA. The primary function of such employees is to take measurements and to accumulate data upon which recommendations are based to advise mechanical contractors how to rectify imperfections or imbalances in heating and air conditioning systems which may become apparent after the contractor(s) have installed such systems. Generally, however, such employees do not physically make the required corrections. If, however, such employees spend a substantial amount of their time in any workweek (i.e. , more than 20 percent) on the site performing manual, physical, and mechanical functions which are those of a traditional craftsperson, they would be considered laborers or mechanics for the time so spent.
Architects and engineers.
Architects, engineers, technicians, and draftspersons are not covered by DBRA, unless they perform duties as laborers and mechanics and do not meet the tests of 29 CFR 541.
The DBA contains no prohibition against the employment of convict labor. Executive Order 11755 permits use of convict labor under certain conditions, and 18 USC 3622 sets forth requirements for convict work-release programs. Any questions or complaints pertaining to the above provisions should be directed to the local U.S. Attorney’s Office.
Government contracts for dredging involve the construction, alteration, or repair of “public works of the United States.” Workers on a dredge engaged in dredging operations are generally laborers or mechanics subject to the DBRA. However, employees engaged in the operations of the vessel or tugboat as a means of transportation are not laborers or mechanics.
Flaggers and traffic directors.
- AAM No. 141 set forth DBRA coverage of employees engaged as flaggers on DBRA contracts issued as of October 18, 1985. The duties of flaggers themselves have been determined to be manual and physical in nature, flaggers typically work on or around heavy or highway construction projects as part of the construction crew, and their work is integrally related and a necessary incident to the other construction activities at the site.
- Employees of traffic service companies which operate as subcontractors on DBRA projects to set up and service traffic control devices ( e.g., barricades, directional signs, lights, arrowboards, etc.) are generally covered by DBRA. However, traffic service companies which rent equipment to the prime contractor and perform only incidental functions at the site in connection with delivery of the equipment are regarded as material suppliers whose employees would not be subject to DBRA unless particular employees spend a substantial amount of time (20 percent or more) in the workweek on the covered site or sites.
Guards and watchmen.
Guards and watchmen whose duties consist solely of watching or guarding are not considered laborers or mechanics for purposes of DBRA. (The rule is different under CWHSSA; However, if such an employee actually performs physical or manual work on the construction project in addition to or in connection with guarding activities, the employee should be classified as a laborer or mechanic for the time so spent and paid the appropriate wage determination rate.
Helicopter pilots are laborers and mechanics for purposes of DBRA.
Housing authority employees.
The U.S. Housing Act of 1937 and the Housing Act of 1949 require HUD to set and enforce prevailing wage rates for architects, technical engineers, draftspersons, and technicians employed in the development of a project. In addition, maintenance laborers and mechanics employed by a local housing authority to perform routine maintenance on property owned by the authority are subject to prevailing rates established by HUD. Questions regarding such situations should be referred to the appropriate HUD labor relations advisor. See https://www.hud.gov/program_offices/field_policy_mgt/localoffices. However, if maintenance laborers and mechanics employed by a housing authority are performing construction work funded by one of the above-mentioned statutes, such work is subject to prevailing wage standards of the DBRA.
Employees who make inspections at a covered construction site to see that the work meets the specifications and requirements of the contract or established standards and codes are not usually considered to be laborers or mechanics for purposes of DBRA. However, if such workers perform other duties as laborers or mechanics, they must be paid the wage determination rate for the particular classification involved for the time so spent.
Managerial and professional employees.
- An individual employed in a bona fide executive, administrative, or professional capacity, as defined in 29 CFR Part 541, is not a laborer or mechanic for purposes of DBRA.
- A supervisory employee who is not exempt under 29 CFR Part 541 and who spends more than a substantial amount of time (20 percent) in a given workweek as a laborer or mechanic must be paid the applicable DBRA prevailing wage rate for the classification of work performed for all hours engaged in such work as a laborer or mechanic. For example, if a nonexempt working foreman spends 60 percent or 24 hours of a 40 hour workweek performing administrative functions such as preparing time cards, supervising the project work, and arranging for deliveries and the remaining 40 percent (16 hours) of the time performing the duties of an electrician, the individual must be paid the electrician’s prevailing wage rate for the 16 hours. See 29 CFR 5.2(m).
- An employee who owns at least a bona fide 20 percent equity interest in the enterprise in which he or she is employed, regardless of the type of business organization (e.g., corporation, partnership, or other), and who is actively engaged in its management, is considered a bona fide exempt executive. The salary and salary basis requirements do not apply to the exemption of business owners under 29 CFR 541.101. An individual with a 20 percent or greater interest in a business who is required to work long hours, makes no management decisions, supervises no one and has no authority over personnel does not qualify for the executive exemption. To qualify for the exemption, a minority owner with at least a bona fide 20 percent interest in the business must be an employee of the business and actively engaged in management. See 29 CFR 541.101.
- The manufacture and delivery to the work site of supply items such as sand, gravel, and ready-mixed concrete, when accomplished by bona fide material suppliers operating facilities serving the public in general, are activities not covered by DBRA. This would be so even though the materials are delivered directly into a contractor’s mixing facilities at the work site. Such bona fide material suppliers are not considered contractors under DBRA. Thus, their employees are not subject to DBRA labor standards.
- A particular facility set up at or near a construction site for the purpose of fulfilling the material requirements of a contract and thus subject to the DBRA initially, may undergo a change in its character to such an extent that it becomes the operation of a supplier. This would be so, for example, if it makes a sufficient quantity of sales from its producing facility to the general public. What constitutes a sufficient quantity of sales to the general public depends on the circumstances in each case, but must be more than mere token sales.
- 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 in the same manner as those employed by any other contractor or subcontractor. Employees of a material supplier who are required to perform more than an incidental amount of construction work in any workweek at the site of work would be covered by the DBRA and due the applicable wage rate for the classification of work performed. This would include warranty and/or repair work. For example, if an employee of a supplier of precast concrete items is required to go to the project site to repair and clean such items and in so doing performs more than an incidental amount of construction activity on the contract, the individual would be subject to DBRA. Similarly, an employee of an equipment rental dealer or tire repair company who performs on-site repair work on leased equipment is subject to DBRA if the employee performs more than an incidental amount of work on the site. For enforcement purposes, if such an employee spends more than 20 percent of his/her time in a workweek engaged in such activities on the site, he/she is DBRA covered for all time spent on the site during that workweek.
- 29 CFR 5.2(l) specifically excludes from the definition of “site of the work” permanent fabrication plants, batch plants, borrow pits, job headquarters, tool yards, etc., of a commercial supplier or materialman that are established by a supplier of materials for the project before opening of bids and are near to but not on the actual project site, even where such operations for a period oftime may he dedicated exclusively, or nearly so, to the performance of a contract.
Owner-operators of trucks and other hauling equipment.
As a matter of administrative policy, the provisions of DBRA/CWHSSA are not applied to bona fide owner-operators of trucks who are independent contractors. For purposes of these acts, the certified payrolls including the names of such owner-operators need not show hours worked nor rates paid, but only the notation owner-operator. This position does not pertain to owner-operators of other equipment such as bulldozers, scrapers, backhoes, cranes, drilling rigs, welding machines, and the like. Moreover, employees hired by owner-operators are subject to DBRA in the usual manner.
There are no exceptions from coverage, on the basis of family relationship, for relatives who are performing the work of laborers or mechanics. They must be paid the prevailing wage rate for the classification of work performed and included in the payroll records.
Repair employees: tire repair companies and heavy equipment dealers.
An employee of an equipment rental dealer or tire repair company who performs on-site repair work on leased equipment is subject to DBRA if the employee performs more than an incidental amount of work on site.
- Where surveying is performed immediately prior to and during actual construction, in direct support of construction crews, such activity is covered by DBRA. Under the U.S. Housing Act of 1937 and the Housing Act of 1949, the development of the project coverage test is broader and may also cover preliminary survey work.
- The determination as to 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, members of the survey party who hold the leveling staff while measurements of distance and elevation are made, who help measure distance with a surveyor chain or other device, who adjust and read instruments for measurement or who direct the work 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.
Timekeepers who perform no manual labor on construction projects are not considered to be laborers or mechanics for purposes of DBRA. However, if such workers perform other duties as laborers or mechanics, they must be paid the wage determination rate for the particular classification involved for the time so spent.
The application of the DBA to truck drivers is based on the definition of “construction, prosecution, completion, or repair” in 29 CFR 5.2(l) Three U.S. appellate court decisions in the 1990s helped to clarify these definitions and provide the guidelines below. See 65 FR 80268 -80278, December 20, 2000.
- Truck drivers are covered by the DBA in the following circumstances:
- Drivers of a contractor or subcontractor for time spent working on the site of the work
- Drivers of a contractor or subcontractor for time spent loading and/or unloading materials and supplies on the site of the work, if such time is not deminimis.
- Truck drivers transporting materials or supplies between a facility that is deemed part of the site of the work and the actual construction site
- Truck drivers transporting portions(s) of the building or work between a site established specifically for the performance of the contract or project where a significant portion of such building or work is constructed and the physical place(s) where the building or work called for in the contract(s) will remain
- Truck drivers are not covered in the following instances:
- Material delivery truck drivers while off the site of the work
- Drivers of a contractor or subcontractor traveling between a DBA job and a commercial supply facility while they are off the site of the work
- (3) Truck drivers whose time spent on the site of the work is de minimis, such as only a few minutes at a time merely to pick up or drop off materials or supplies
Tugboat operators, tugmasters, captains, and deckhands.
In general, tugboat personnel are engaged in navigational transportation, and are not considered to be laborers or mechanics. However, for example, if a crew member on a dredging project is performing work directly related to the covered construction project such as connecting, extending, and controlling the pipeline through which dredged material is being pumped, the individual would be considered a laborer or mechanic for the time so spent and entitled to the applicable prevailing wage rate.
There are no exceptions to DBRA coverage for volunteer labor unless an exception is specifically provided for in the particular DBRA under which the project funds are derived. Furthermore, DOL does not have the authority to grant waivers for volunteer labor.
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