The Last Goodbye “Gift” from the Biden DOL to Davis-Bacon Covered Construction Contractors
“An idealist is one who, on noticing that a rose smells better than a cabbage, concludes that it will also make better soup.”
― H.L. Mencken
On Aug. 30, 2024, the U.S. Department of Labor (“DOL”) published a notice of proposed revisions to the Davis-Bacon Certified Payroll form (WH-347) in the Federal Register for public comment. The last day to submit comments was Oct. 29, 2024.
Proposed changes to the payroll form included:
capturing additional details on contractor and subcontractor claimed credits for fringe benefits provided to their workforce, and
providing additional clarity around the itemization of deductions, including clarifying contractor and subcontractor responsibilities in DOL’s instructions and providing additional space for contractors and subcontractors to list each deduction taken against worker pay.
At the end of the Biden Administration, DOL rushed the new payroll reporting form into service. On January 6, 2025, the Office of Management and Budget gave its final approval for the new payroll form; and on January 15, 2025, just five days before the new Administration took over, DOL announce the final revisions by a blast email. As stated in the email:
The revisions clarify the data to be entered in certain fields, include more information about fringe benefit contributions and participation in apprenticeship programs, and simplify the form’s instructions. The form is currently available on the Wage and Hour Division’s website as a non-fillable PDF, and a fillable PDF version will be available soon. Training videos on the use of the revised WH-347 will also soon be available at the Prevailing Wage Video Library, but in the meantime, any questions about how to fill out the revised fields can be sent to dgceinquiries@dol.gov. Contractors and sub-contractors are encouraged to immediately begin using the revised form.
The impact of the new payroll form may be significant. It will likely burden employers furnishing workers bona fide fringe benefit plans (rather than just paying cash fringes) and require them to hire more staff needed to break down and certify the hourly credit for fringe benefits which are not furnished on an hourly basis, like monthly health insurance premiums or quarterly 401K contributions. Of course, employers paying a weekly cash fringe benefit supplement or just paying all cash for wages and benefits in combination will find the new form easier to navigate. But for others, this is not easy task, and employers traditionally do not perform this kind of reconciliation every weekly pay period, and even diligent employers may only true up fringe benefits on a monthly or quarterly basis and make good on the requirements of the prevailing wage laws. Now it apparently needs to be done each week contemporaneously with the payroll, so the employer can certify it.
What DOL is doing is setting employers up for recordkeeping violations and forcing them to certify their fringe benefits and wage deductions. Employers who mess up thus can be subject to heavy sanctions -- including allegations they submitted false payrolls and/or made unallowable wage deductions. These violations may lead to False Claims Act and False Statement Act issues, more qui tam suits, and even criminal prosecution. Thus, the new payroll form brings the long arm of the civil fraud and criminal laws into further play. That is not a bug to the people who wanted to make this change; that is a feature.