ARB affirms decision that Truck Drivers’ Time Waiting at a Worksite is Covered by the DBA  

“Lost time is never found again.” - Benjamin Franklin

On May 13, 2022 in E.T. Simmonds Construction Co., ARB No. 2021-0054, ALJ No.2021-DBA-00001, slip op. at 9, (ARB May 13, 2022), the Department of Labor’s (“DOL”) Administrative Review Board (“ARB”) affirmed an Administrative Law Judge’s (“ALJ”) determination that time spent by a contractor’s truck drivers at the site of work was covered by the Davis-Bacon Act (“DBA”). The DBA is a prevailing wage law that requires payment of wages and fringe benefits prevailing in the locality. The DBA applies to contracts in excess of $2,000 that are entered into by either the federal government or the District of Columbia and are for the purpose of construction, alteration, or repair of public budlings or public works. DOL oversees enforcement of the DBA and has the authority to issue rules and regulations for contractors and subcontractors working on covered projects.

As you can imagine, construction work requires a large amount of materials to be transferred to and from the site of work. Here specifically, the contractor was tasked with performing construction work on a state road in Illinois. The contractor’s employees would haul waste materials from the worksite to off-site locations and then return for more waste. They would not participate in the loading or off-loading of materials but would have to wait at the worksite for this to be done for a significant portion of their day.

Through the years, DOL has applied a de minimis standard to determine if this type of activity is covered by the DBA. If the truck drivers spent only a small portion of their time actually on the site, then their work would not be covered by the DBA. In 1991, this same issue was decided in the D.C. Circuit Court in Bldg. & Constr. Trades, AFL-CIO v. U.S. Dep’t of Labor Wage Appeals Bd., 932 F.2d 985, 992 (D.C. Cir. 1991). There the court interpreted the DBA narrowly where it says that “mechanics and laborer employed directly upon the site of the work.” 40 U.S.C. 276a(a). The court stated that this imparted a clear geographical limit to the jurisdiction of the act. But, since that decision, the Department of Labor issued new regulations in 1992 as a response to the 1991 decision that adopted the current de minimis standard. (These regulations were codified in 29 C.F.R. 5.2(j) but have since moved to 29 C.F.R. 5.2(l)). There, DOL stated that they will not apply the DBA to the time that truck drivers spend on site unless it is more than a de minimis amount.

Here, the ALJ ruled that, since the truck drivers spent an estimated 25% of their day on the work site waiting to onload materials, that time was no longer de minimis and constituted a significant part of their work day. However, the contractor appealed to the ARB citing the 1991 D.C. Circuit case and arguing that the current regulations may reward inefficient drivers for spending too much time on the work site. Additionally, they argued that that the regulations are void for vagueness because it could treat two drivers, one who spends more time at the worksite and one who spends less time at the worksite differently for the same job.

Ultimately, the ARB was forced to affirm the ALJ’s decision because they are bound, as an arm of the DOL, by the regulations of DOL. Despite this, they state that the contractor’s arguments and the federal court decision gave them pause and seemed to hesitate before affirming the ALJ’s decision. 

Included in DOL’s proposed revisions to the DBA’s regulations is a discussion of this de minimis rule. DOL plans to include transportation in 29 C.F.R. 5.2’s definition of construction, prosecution, completion or repair in five situations. See 87 FR 15734. Under these proposed regulations, the activities described in E.T. Simmonds would be covered as it states that the DBA would cover “a driver or driver's assistant's “onsite activities essential or incidental to offsite transportation,” discussed further below, where the driver or driver's assistant's time spent on the site of the work is not so insubstantial or insignificant that it cannot as a practical administrative matter be precisely recorded…” Id.  However, we will see if these proposed additions make it into the Final Rule. In the meantime, if your truck drivers spend a significant amount of time at the worksite waiting to load or offload materials, they may be owed prevailing wages for the time spent waiting.

For more information please see the ARB decision here: https://www.dol.gov/sites/dolgov/files/OALJ/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/DBA/21_054_DBAP.pdf.