USDOL Changes to Davis-Bacon Related Acts 2023

In August 2023, the U.S. Department of Labor (USDOL) unveiled significant updates to the Davis-Bacon and Related Acts (DBRA), marking the most substantial changes to these regulations in nearly four decades. These revisions, set to take effect on October 23, 2023, emphasize prevailing wages in the construction industry.

Regular Updates of Non-Collectively Bargained Prevailing Wage Rates

Ensuring Accuracy

One of the central modifications introduced by the new rule is the provision for regular updates of non-collectively bargained prevailing wage and fringe benefit rates. These updates will rely on data from the Bureau of Labor Statistic's Employment Cost Index (ECI) or its successor data. This move aims to enhance the precision and currency of prevailing wage rates.

Reverting to the "Three-Step" Method for Determining Prevailing Wages

Returning to the Roots

The updated regulations bring about a return to the original methodology for determining prevailing wages, known as the "three-step process," which was in use before 1983. This method entails considering wage rates where a majority are identical. If no majority exists, the wage rate earned by the greatest number of workers (provided at least 30% earn that rate) is utilized. If neither condition is met, a weighted average comes into play.

Authority to Adopt State or Local Prevailing Wages

A Regional Approach

Another notable change is the explicit authorization for the USDOL to adopt state or local prevailing wage rates for highway and non-highway construction, provided such rates align with the DBA's objectives. These state or local rates will be considered if the relevant government entities utilize open data collection processes, labor classification standards similar to the WHD's criteria, and calculations of basic hourly rates and bona fide fringe benefits.

Reducing the Need for Conformance Requests

Simplifying Reporting

A new procedure has been introduced to reduce the reliance on conformance requests. The USDOL will now identify and list wage and fringe benefit rates for certain classifications with insufficient data. These rates will be listed if the work is not already covered in the wage determination, the classification is commonly used, or the rate reasonably correlates with prevailing wage rates.

Expanding the Types of Projects Subject to DBRA

Inclusive Coverage

The final rule also provides clarity on the types of projects subject to Davis-Bacon labor standards. Projects involving solar panels, wind turbines, broadband installation, and electric car charger installation will be covered if they are part of a contract with a federal agency or fall under a Related Act. This expanded coverage applies even when these projects constitute only a portion of the overall work.

Clarifying Definitions within the DBRA Code

Enhancing Clarity

The USDOL has taken steps to clarify various definitions within the DBRA code. Notably, the code now allows for multi-county project wage determinations, the use of data from nearby counties when local data is lacking, and an expanded definition of the term "area" for determining prevailing wages. Definitions for "material supplier" and "secondary construction site" have also been added for better understanding.

Strengthening Worker Protections and Enforcement

Ensuring Fair Practices

While not directly related to prevailing wages, the final rule introduces new anti-retaliation provisions aimed at discouraging unfair practices by contractors and subcontractors that could deter worker participation in WHD investigations. Additionally, the rule enhances the ability to cross-withhold funds across contracts held by the same prime contractor and revises debarment standards to align with both the DBA and Related Acts.

Implications for Prevailing Wages and Certified Payroll

Focusing on Accuracy

1. Accuracy of Wage Data: Regular updates based on ECI data will ensure that prevailing wage rates remain current and precise, directly impacting Certified Payroll reporting.

2. Reporting Complexity: The return to the "three-step" method may introduce complexity into Certified Payroll reporting. Contractors must ensure they use the correct prevailing wage rates to maintain compliance.

3. Regional Rate Considerations: Contractors should be aware of the potential for state or local prevailing wage rates in specific projects, as these may affect Certified Payroll reporting requirements.

4. Clarity in Definitions: The clarified definitions within the DBRA code will aid contractors in accurately categorizing workers and reporting wages on Certified Payroll.

5. Enhanced Worker Protections: While not directly tied to prevailing wages, the introduction of anti-retaliation provisions underscores the importance of maintaining accurate Certified Payroll records and treating workers fairly.

Conclusion

In conclusion, the recent updates to the Davis-Bacon and Related Acts have a profound impact on prevailing wages in the construction industry. Contractors and stakeholders must adapt to these changes to ensure compliance with the new rules. Accuracy in Certified Payroll reporting remains paramount, and staying informed, consulting the official USDOL publication for comprehensive details, and seeking guidance from experts will be essential for navigating these updates effectively.