Department of Labor Takes Steps to Ensure that Davis-Bacon Protects Construction Workers Under the Bipartisan Infrastructure Law

“Head them off at the pass? I hate that cliché.”

 - Hedley Lamar, Blazing Saddles

On November 15, 2021, President Biden signed the Bipartisan Infrastructure Law which invests a significant amount of money into several key areas of infrastructure including access to high-speed internet, clean water, and investment in the passenger rail system. With this federal funding, President Biden expects to create over 800,000 construction jobs. 

With the estimated creation of over 800,000 construction jobs, the Department of Labor (“DOL”) will be hard pressed to “police” the payment of Davis-Bacon Act (“DBA” or “Act”) wages. The DBA is a federal labor law that requires contractors on federal and federally assisted construction contracts to pay their laborers and mechanics a prevailing wage and fringe benefits. The Act applies to each federally funded or assisted contract in excess of $2,000 for the construction, alteration, or repair of a public building or public works.            

DBA clauses and wage determinations, which detail how much each laborer/mechanic must be paid, are supposed to be included in every contract that is covered by the Act. But, it is not always followed. The blame for this can be shared by several parties. The prime or subcontractor may be deliberately flaunting their contractual obligations. On the other hand, the contracting agency has been known to forget to put a wage determination into the contract. This is where DOL comes in. DOL will investigate contractors, either on their own initiative, or at the complaint of the workers, unions, competitors, or the government to determine whether contractors are following their contractual obligations. DOL can assess back wages and withhold money or sanction the contractor for non-compliance, including wielding the sanction of debarment. 

To head new infrastructure spending non-compliance off at the pass, DOL has published a new page on their website found here: https://www.dol.gov/agencies/whd/government-contracts/protections-for-workers-in-construction. This website link attempts to gather certain resources available to contracting agencies, contractors, and workers so that they can educate themselves on the requirements of the Act. This includes a non-exclusive list of the types of projects that may be subject to the DBA. DOL’s intent behind the website page is to allow less experienced contractors, agencies, and employees the resources to determine on their own what their obligations are. So, when a state agency solicits bids to repave a highway and forgets the DBA, a contractor can come out and say “Hey, shouldn’t this be covered by the Davis-Bacon Act?” DOL has also issued a new Fact Sheet #66A to help determined coverage issues.  See https://www.dol.gov/agencies/whd/fact-sheets/66a. Alternatively, when a worker believes they aren’t being paid what they are owed, they can quickly google what types of contracts the DBA applies to determine whether they want to lodge a complaint with DOL about their employment conditions.

“The Wage and Hour Division (WHD) recognizes that the Bipartisan Infrastructure Law’s historic commitment to funding infrastructure construction means that many funding recipients and contractors may be subject to Davis-Bacon prevailing wage requirements for the first time.” Id. The new website link thus is an attempt by DOL to educate new prime and subcontractors, who may not be familiar with the DBA, but may be drawn to bidding on the new infrastructure spending 

In December of 2020, Abrahams Wolf-Rodda published a blog detailing the Government Accountability Office’s (“GAO”) findings after studying DOL’s enforcement procedures of the Service Contract Act (“SCA”). In that, one of DOL’s largest issues was the communication between DOL and the different contracting agencies. It made it difficult to identify the contracts that needed SCA clauses and wage determinations. It stands to reason that the same communication issues plague DBA enforcement. This website page may not be a reaction to that published study, but it may solve some of the issues by educating the people affected by the enforcement process.