Labor Department Rescinds AAM 212; Reverses Rule on Davis-Bacon for Survey Crews (12-18-20)

Labor Department Rescinds AAM 212; Reverses Rule on Davis-Bacon for Survey Crews (12-18-20)

December 14, 2020: NSPS today announced it won a major victory in its efforts to enhance and promote professionalism in surveying as the Wage and Hour Division of the U.S. Department of Labor has rescinded All Agency Memorandum (AAM) 212.

The Trump Administration released a new document, AAM 235 on December 14. It notes “AAM 212 is rescinded effective immediately.”

AAM 212 was issued by the Obama Administration in 2013. It reversed more than 50 years of accepted policy, dating back to the administration of President John F. Kennedy, that the prevailing wage mandate of the Davis-Bacon Act only applied to members of survey crews as “laborers and mechanics” to the extent they perform activities on a Federally-funded construction project site “such as clearing brush and sharpening stakes”.

Since the issuance of AAM 212, NSPS has been on a nearly 7-year campaign to seek rescission of the policy. It included testimony before Congress, meetings with individual Congressmen and Senators, letters by design and construction trade associations and professional societies and taxpayer groups, earning the assistance of the Small Business Administration (SBA), and longstanding negotiations with the Department of Labor and the Wage and Hour Division. NSPS argued that application of the controversial Depression-era Davis-Bacon Act was unnecessary and imposed a considerable burden on surveying firms, many of which are small businesses. The Obama Administration’s policy was implemented with no public notice, no opportunity for public comment, no consultation with NSPS, no analysis of its economic impact or effect on small business, and no demonstration of the need. “Members of survey crews are critical to professional surveyors. They exercise judgment, make decisions in the field, collect data, make calculations, and perform other tasks that are technical and cognitive in nature and anything but ‘laborer and mechanic’ duties,” said NSPS Executive Director Curt Sumner, LS. “AAM 235 recognizes modern surveying and the important role survey crew personnel play. We commend and deeply appreciate the efforts of the Wage and Hour Division, Secretary of Labor Eugene Scalia, and Deputy Secretary Patrick Pizzella for righting this wrong.” Sumner added, “This important change in policy reaffirms that surveying is a profession and that members of survey crews who support licensed surveyors are an important part of the professional services our members provide. I want to commend our Government Affairs Committee, led by Pat Smith, RPLS, of Texas, and our Government Affairs team of John Palatiello and John “JB” Byrd of John M. Palatiello & Associates, Inc./Miller-Wenhold Capitol Strategies, LLC for their hard work getting us to this victory.”

Background from NSPS:

In March, 2013, with no public notice, request for public comment, small business or economic analysis, or engagement with the private sector, the Department of Labor expanded the Davis Bacon Act.

The Department reversed more than 50 years of policy and practice and applied Davis-Bacon to surveying technicians. The 50+ year policy was articulated by then-Secretary Arthur Goldberg during the Kennedy Administration, which the current Labor Department has overturned.  In addition to issuing AAM212, the Department of Labor sent a letter to the International Union of Operating Engineers further explaining its new policy.

"Since 1935, the Davis-Bacon Act has required that workers on all federally funded or federally assisted construction projects whose contracts total more than $2,000 be paid no less than the “prevailing wages” in the area in which the project is located. All Agency Memorandum (AAM-212), issued by the Department of Labor's (DOL) Wage and Hour Division during the Obama Administration on March 22, 2013, regarding the applicability of Davis-Bacon Act to members of survey crews, is a costly and unnecessary change in more than 50 years of accepted and applied policy. The memorandum provides no rationale for this change in policy, cites no recent legislation, and references no court case to explain the basis of this new policy. There has been no action by Congress, no ruling by a court, and no other recent development to change a 50+ year policy. Moreover, this change in policy was made with no public notice, no public comment, no consultation with affected stakeholders, no economic or regulatory impact analysis, and no study of its affect on small business. DOL has unilaterally expanded the application of the Act to a class of workers who have never been heretofore considered “laborers and mechanics”. Survey crews work under the responsible charge of licensed, professional surveyors and their services provide a level of professionalism and technical support to construction projects. The policy in AAM 212 is an affront to the surveying profession. We believe the classification of members of survey crews as “laborers and mechanics” is detrimental to our profession and an inappropriate demotion of valued and skilled employees"

All four recently published AAMs can be found at: https://beta.sam.gov/help/wage-determination-resources/all-agency-memos

The pdfs of each are also attached.  They are:

• AAM 233: conformance decisions
• AAM 234: FY 2021 and 2022 DBA survey plan
• AAM 235: survey crews
• AAM 236: updating the $1 million threshold