August 8, 2023

The U.S. Department of Labor (DOL) released its 812-page pre-publication version of the final rule to modernize Davis-Bacon prevailing wage that SWACCA has been engaged on dating back to the Biden presidential transition. The final rule represents the most sweeping overhaul of Davis-Bacon regulations since the Reagan Administration.

The final rule features several notable wins on issues that SWACCA advocated for in comments submitted in May 2022 after the rule was originally proposed, including: (1) returning to the original definition of “prevailing wage”—including the 30% rule; (2) ensuing that prime contractors are responsible for subcontractors’ Davis-Bacon compliance; (3) reinforcing the principle that Davis-Bacon labor standards apply even when there is no employment relationship between a contractor and worker, such as when the worker is treated as an independent contractor; and (4) requiring federal agencies to regularly issue reports of plans for future federal construction that is subject to federal prevailing wage and detailing the location and type of planned construction.

In addition, this final rule reflects our successful advocacy with the United Brotherhood of Carpenters (UBC) to convince DOL to abandon plans to expand the final rule's “site of work” provisions to panel fabrication facilities. To that end, DOL noted in the final rule that:

“Two union-affiliated commenters, the UBC and Signatory Wall and Ceiling Contractors Alliance, while not expressly opposing the [site of work] proposal, raised concerns that it could interfere with existing collective bargaining agreements that cover workers at offsite factories, and proposed that the site of the work not include facilities where in the normal course of business, products are manufactured or fabricated for non-federal or non-federally assisted projects. After considering the comments received, [DOL] modifi[ed] its proposal to narrow the scope of coverage at secondary construction sites. Specifically, the final rule provides that for a secondary construction site to be considered part of the site of the work, in addition to being a location where a significant portion of a building or work is constructed for specific use in the designated building or work, the site must be either established specifically for the performance of the covered contract or project or dedicated exclusively, or nearly so, to the covered contract or project.”

The final rule is available for review here. In addition, DOL posted a series of Frequently Asked Questions and a helpful Comparison Chart comparing the current Davis-Bacon regulations to the revised standards under today’s final rule.

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