On March 18, 2022, the Department of Labor (DOL) published a proposed rule to update regulations implementing the Davis-Bacon Act, which applies to federal and federally-assisted construction projects. DOL has prepared an initial regulatory flexibility analysis for this rulemaking and seeks feedback on the numbers of small businesses affected and their compliance costs. The proposal updates definitions such as “site of the work” to include sites where prefabricated buildings are produced, and “scope of work” to include energy infrastructure.
Proposed Rule Changes here: https://advocacy.sba.gov/2022/03/21/dol-updates-prevailing-wage-methodology-under-davis-bacon-act/
Federal Register Announcement: https://www.federalregister.gov/documents/2022/03/18/2022-05346/updating-the-davis-bacon-and-related-acts-regulations
Scroll down below the background for a link to a virtual roundtable being hosted by the Office of Advocacy for more information on this matter.
Impact on Land Surveyors and their teams:
The new rules also expand Davis Bacon’s coverage of survey workers and would specify that survey crew members who spend most of their time on a covered project taking or assisting in taking measurements are covered by Davis Bacon if they do not meet the tests for exemption (most frequently as a professional employee). Similarly, if the work of a survey crew is performed on the site of construction, immediately prior to or during construction, or in direct support of construction crews, then the survey crew workers would be covered by Davis Bacon.
This issue has swung back and forth since 2013. From 2013 until mid-December 2020, many firms that provide land surveying services on construction sites had to pay their survey crews the prevailing wage rates when they were working on covered projects. They paid their survey crews at prevailing wage rates whenever they were on the specified projects and then regular rates for other work.
This issue started in 2013 when the Department of Labor issued all agency memorandum (AAM) 212, which applied Davis-Bacon to surveyors.
In December 2020, the Department of Labor rescinded AAM 212. NSPS, ACEC and others were part of a coalition of organizations both times in opposing AAM 212.
NSPS timeline on this: https://www.nsps.us.com/page/DavisBacon
This proposal may lead to more small firms being required to comply with Davis-Bacon labor standards and also changes the methodology for determining the prevailing wage. DOL currently uses the average rate if a majority of workers do not receive the same wage rate. Under the proposed rule, if a majority of workers are not paid a particular wage, DOL will identify any wage rate that is paid to more than 30% of the workers as prevailing. If there is still no wage prevailing, the agency will revert to an average rate to determine prevailing wage. In addition, DOL will also update non-union prevailing rates every three years to address out-of-date wage determinations.
Comments are due to the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor by May 17, 2022.
NSPS and its Government Affairs team is crafting a strong response to these proposed changes, many of which have been proposed without any interaction with our profession at any level.
Proposed Rule Changes are here:
Below is a link to a virtual roundtable being hosted by the Office of Advocacy for more information on this matter.
Small Business Virtual Roundtable on
DOL’s Proposed Rule on the Davis-Bacon Act (DBA)
Monday, April 25, 2022, 3:00 p.m. – 4:30 p.m. (Eastern Time)
-The Office of Advocacy, an independent office within the U.S. Small Business Administration, is holding a virtual roundtable to hear directly from small businesses about DOL’s proposed rule to update regulations implementing the Davis Bacon Act (DBA).
This roundtable will take place on Monday, April 25, 2022, 3:00 p.m. – 4:30 p.m. (Eastern Time). This meeting will be held via Teams Webinar. Comments on the proposed rule are due on May 17th, 2022.
- RSVP by email to Janis.Reyes@sba.gov if you would like to join this virtual meeting and I will forward you the web access/call-in information.
Jessica Looman, Acting Administrator of the Wage and Hour Division at Department of Labor, has been invited to provide a brief description of this proposed rule.
This will be followed by a session to hear directly from stakeholders about the impact of these proposed changes on small businesses.
During the roundtable DOL will not be seeking any collective consensus on the rule and any comments made during this roundtable will not be considered official comments in this rulemaking process.
-On March 18, 2022, the Department of Labor (DOL) published a proposed rule to update regulations implementing the Davis-Bacon Act, which applies to federal and federally-assisted construction projects.
DOL has prepared an initial regulatory flexibility analysis for this rulemaking and seeks feedback on the numbers of small businesses affected and their compliance costs. The proposal revises definitions such as “site of the work” to include sites where prefabricated buildings are produced and “scope of work” to include energy infrastructure. These changes may lead to more small firms being required to comply with Davis-Bacon labor standards. The proposal also changes the methodology for determining the prevailing wage. DOL currently uses the average rate if a majority of workers do not receive the same wage rate. Under the proposed rule, if a majority of workers are not paid a particular wage, DOL will identify any wage rate that is paid to more than 30 percent of the workers as prevailing. If there is still no wage prevailing, the agency will revert to an average rate to determine prevailing wage. DOL also proposes to update non-union prevailing rates every three years to address out-of-date wage determinations.
Roundtable meetings are open to all interested persons, except the press, in order to facilitate an open and frank discussion about issues of interest to small business. Agendas and meeting materials are available to all, including the press. Anyone who would like to receive roundtable agendas or meeting materials, or be included in the regular distribution, should contact: Janis.Reyes@sba.gov. The purpose of this meeting is to exchange opinions, facts, and information and to obtain the attendees’ individual views and opinions regarding regulatory and policy issues affecting small business. The meetings are not intended to communicate or achieve any consensus positions of the attendees.
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:
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