The Davis-Bacon Act establishes a federal minimum wage to be paid to workers on projects benefiting from federal funds. Generally known as the “prevailing wage,” the United States Supreme Court described it as “a minimum wage law designed for the benefit of construction workers.” 

The Department of Labor (DOL) has recently proposed significant updates to the 1935 law, last updated in the 1980s. The proposed changes will accelerate the process for determining the correct pay rates to be applied and add anti-retaliation protections to the law.

It is no secret that inflation is running at near-record highs. It’s also no secret that the impacts of inflation on low-wage workers are especially severe. Included in their ranks are workers on government-funded projects that have a separate minimum wage – the prevailing wage. 

The law impacts over one million American workers by setting wage rates for over 100,000 different positions in counties across the United States. The affected positions are usually understood to be in the construction industry though they also extend to a wide variety of jobs, including truck drivers and building service workers. 

How pay rates are determined: currently, the DOL calculates the prevailing wage through surveys and assigns a rate based on the pay earned by more than half of workers in a designated area, usually a county. If the responses are insufficient to make that determination using that method, the department determines the applicable wage using a “blended rate.”  

The process of making these wage determinations can take years, however. While process-driven delays are never helpful, in times of high inflation, they cause significant hardship to workers. The proposed rule creates an interim step to allow the DOL to make a faster determination based on the wage that 30% of the workers in a covered position. 

Anti-retaliation provisions: Retaliation by employers trying to prevent workers from asserting their rights is the number one employment-related violation. The Davis-Bacon Act currently does not have protections against retaliation for workers who report they are not being paid the appropriate prevailing wage. The revisions will specifically prohibit retaliation against workers asserting their rights, including the type that can be a ticket to the Retaliation Hall of Shame. 

The DOL website alerts workers to the following common Davis-Bacon Act violations:

  • Misclassification of laborers and mechanics. 
  • Failure to pay full prevailing wage, including fringe benefits, for all hours worked (including overtime hours). 
  • Inadequate recordkeeping, such as not counting all hours worked or not recording hours worked by an individual in two or more classifications during a day. 
  • Failure to maintain a copy of the bona fide apprenticeship program and individual registration documents for apprentices. 
  • Failure to submit certified payrolls weekly. 
  • Failure to post the Davis-Bacon poster and applicable wage determination.

Although prevailing wage enforcement efforts at the DOL over the past decade have resulted in the recovery of more than $213 million for over 84,000 workers, as with other areas of labor law, government prosecution does not begin to address the entire problem. Private litigants represented by their own counsel are essential to combat the $50 billion problem of wage theft.

If you or your fellow workers have concerns that you are not being paid correctly or have suffered retaliation for raising your concerns, you should seek advice. 

At Pelton Graham, we get results – we don’t take every case, but if we accept yours, we promise we’ll do our very best to bring you the best possible outcome.

If you have any questions regarding your rights as an employee, applicant, independent contractor, or anything else related to the workplace, contact us for a no-obligation, no-cost consultation by telephone, video conference, or in-person at our nearest office.

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