Employment Law Guide

Federal Contracts-Working Conditions: Prevailing Wages in Construction Contracts

Davis-Bacon and Related Acts
(40 USC §3141 et seq.; 29 CFR Parts 1, 3, 5, 6 and 7)

Who is Covered

The Davis-Bacon and Related Acts (DBRA) generally apply to contractors performing on federal and federally assisted contracts in excess of $2,000 for construction, alteration, or repair (including painting and decorating). Laborers and mechanics who work on the site of the work of DBRA-covered contracts are entitled to receive prevailing wage rates for such work.

Basic Provisions/Requirements

The Davis-Bacon and Related Acts (DBRA) require that contractors performing on covered contracts pay laborers and mechanics employed on the project jobsite not less than the prevailing wage rates (including fringe benefits) listed in the contract's Davis-Bacon wage determination for corresponding classes of laborers and mechanics. The rates listed are based on wages and fringe benefits the Wage and Hour Division (WHD) found to be prevailing for laborers and mechanics employed on similar projects in the area. Davis-Bacon labor standards clauses and the applicable wage determination(s) must be included in covered contracts.

Apprentices may be employed at less than the prevailing wage rates if they are individually registered in and employed pursuant to an apprenticeship program registered with the Department of Labor or with a state apprenticeship agency recognized by the Department.

Contractors on DBRA projects are required to pay laborers and mechanics weekly and to submit weekly certified payroll records to the contracting agency. DBRA contractors are also subject to rules concerning allowable payroll deductions.

Contractors and subcontractors on prime contracts covered under the DBA or Related Acts in excess of $100,000, or $150,000 for prime contracts covered under the DBA that are subject to the Federal Acquisition Regulations, are also required, pursuant to the Contract Work Hours and Safety Standards Act (CWHSSA), to pay laborers and mechanics, including guards and watchpersons, no less than one and one-half times their basic rates of pay for all hours over 40 worked on a covered contract in a workweek.

Worker Rights

The Davis-Bacon and Related Acts (DBRA) provide laborers and mechanics on covered contracts the right to receive at least the locally prevailing wages (including fringe benefits), as determined by the Department of Labor, for the type of work performed. The Wage and Hour Division and contracting agencies accept complaints of alleged DBRA violations.

It is prohibited to retaliate against workers or job applicants for engaging in protected activities such as making a complaint or cooperating in a WHD investigation under the DBRA.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

Every contractor performing work covered by the Davis-Bacon labor standards must post the WH-1321 "Worker Rights Under the Davis-Bacon Act" poster at the site of the work in a prominent and accessible place where it may be easily seen by workers. The applicable DBRA wage determination, including any conformed classifications, must be similarly posted.

Recordkeeping

Under the Davis-Bacon and Related Acts (DBRA), contractors must maintain records for all laborers and mechanics during the course of the work and preserve the required records for a period of three years after all the work on the prime contract is completed. Required records must include the following information for each covered worker:

• Name, address, telephone number, email address, and social security number;
• Correct classification(s) of work actually performed;
• Hourly rates of wages paid, including rates of contributions or costs anticipated for bona fide fringe benefits or their cash equivalents;
• Daily and weekly numbers of hours actually worked in total and on each covered contract;
• Deductions made;
• Actual wages paid;
• Detailed information regarding bona fide fringe benefit plans and programs, including records that show that the plan or program has been communicated in writing to the laborers and mechanics affected; and
• If applicable, detailed information regarding approved apprenticeship programs.

Some of the records required to be kept under the DBRA are also required under the Fair Labor Standards Act. See Wage and Hour Division Fact sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA).

Reporting

Weekly Certified Payrolls

Each contractor must submit weekly to the contracting agency or entity certified payrolls providing the following information for each covered worker for the preceding weekly payroll period:

• Name and an individually identifying number for each worker (e.g., last four digits of worker's social security number);
• Correct classification(s) of work actually performed;
• Hourly rates of wages paid, including rates of contributions or costs anticipated for bona fide fringe benefits or their cash equivalents;
• Daily and weekly number of hours actually worked in total and on each covered contract;
• Deductions made; and
• Actual wages paid.

Each certified payroll submitted must be accompanied by a "Statement of Compliance" using either page 2 of Form WH-347 Payroll (For Contractors Optional Use), or any form with identical wording, certifying compliance with applicable requirements. The statements must be signed by the contractor, or by an authorized officer or employee of the contractor who supervises the payment of wages. The certified payrolls must be submitted to the contracting agency or other designated entity. These certified payrolls must be submitted within seven days after the regular payment date for the payroll period. The certified payrolls may be submitted by any method permitted by the contracting agency, but must be signed with an original handwritten signature or, if required or permitted, a legally valid electronic signature.

From time to time, WHD may ask contractors to submit, via survey, wage data from construction projects on which they have employed laborers and mechanics for use by WHD in determining the locally prevailing wage rates that will apply to Davis-Bacon and Related Acts (DBRA)-covered projects in the future. The submission of wage data is encouraged, but voluntary. When new surveys are conducted to enable WHD to determine the locally prevailing wages, contractors and others may use the WD-10 Form, Report of Construction Contractor's Wage Rates to respond.

Penalties/Sanctions

Contractors found to have disregarded their obligations to workers or subcontractors may be debarred from receiving future contracts for three years. In addition, contract payments may be withheld in sufficient amounts to satisfy liabilities of the contractor for unpaid wages and for liquidated damages that result from overtime violations of the Contract Work Hours and Safety Standards Act (CWHSSA). Breach of the required contract clauses under the Davis-Bacon and Related Acts (DBRA) and CWHSSA may also be grounds for termination of the contract.

Workers have rights of action and/or of intervention against the contractor and its sureties if the amounts withheld are insufficient to reimburse the unpaid wages. Under such an action, it is no defense that workers accepted less than the required rate of wages or voluntarily returned wage payments to the contractor.

Contractors may challenge the Wage and Hour Division's determinations of violations and debarment before an Administrative Law Judge (ALJ). Contractors may appeal ALJ decisions and orders to the Department's Administrative Review Board (ARB). ARB determinations on violations may be appealed to and are enforceable through the federal courts.

Falsification of the required certified payrolls or any kickback of wages may subject a contractor to civil or criminal prosecution, the penalty for which may be fines and/or imprisonment.

Relation to State, Local, and Other Federal Laws

Since 1931, Congress has extended the Davis-Bacon labor standards requirements to numerous other laws - "Related Acts" - that provide federal assistance for construction through loans, grants, loan guarantees, insurance, and other methods. These laws require payment of the prevailing wages determined in accordance with the Davis-Bacon Act on federally assisted construction undertaken pursuant to the relevant law. Examples of the Related Acts are the Federal-Aid Highway Acts, the Housing and Community Development Act of 1974 (and various other laws administered by the U.S. Department of Housing and Urban Development (HUD)), and the Federal Water Pollution Control Act.

The Copeland "Anti-Kickback" Act prohibits contractors from inducing any person employed in DBRA-covered construction to give up any part of the compensation to which they are entitled, and requires contractors to submit a weekly statement of the wages paid to each worker performing DBRA-covered work. Implementing regulations govern allowable payroll deductions.

Contractors on projects subject to Davis-Bacon labor standards may also be subject to overtime pay requirements under the Contract Work Hours and Safety Standards Act (CWHSSA) and the Fair Labor Standards Act (FLSA).

In addition to these federal labor standards, state and local prevailing wage and overtime pay requirements may apply.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Davis-Bacon and Related Acts (DBRA), such as the DOL Prevailing Wage Resource Book and the DBRA Forms page. Other compliance assistance related to the DBRA is available on the Davis-Bacon and Related Acts (DBRA) webpage. Also, the SAM.gov provides the ability to search wage determinations.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

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