Davis-Bacon and Related Acts Coverage

DAVIS-BACON AND RELATED ACTS (DBRA)

What is the Davis-Bacon Act (DBA)?

History of the DBA

• The DBA, passed in 1931, was the first Federal law to govern wage standards for non-government workers. It requires the payment of locally prevailing wages and fringe benefits, as determined by DOL, to laborers and mechanics working for contractors and subcontractors engaged in Federal construction contracts.
• In 1934, the Copeland Act added a requirement for contractors to submit weekly certified payrolls and prohibited any person from inducing a worker to give up any part of the compensation that they are entitled to under the terms of their employment contract.
• Subsequent amendments in 1935 and 1964 added the requirement to include applicable wage determinations in covered contracts, established withholding and debarment procedures, and added fringe benefits to the prevailing wage requirements.

Purpose of the DBA

• To protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area.

DBA requirements

• Contractors must pay laborers and mechanics working directly upon the site of the work at least the locally prevailing wages (including fringe benefits) listed in the applicable Davis-Bacon wage determination in the contract for the work performed.
• The DBA directs DOL to determine the applicable locally prevailing wage rates. DOL primarily does so by conducting Davis-Bacon surveys and issuing general wage determinations, which are listings of prevailing wage and fringe benefit rates for classifications of laborers and mechanics for a particular type of construction in the specified geographic area. General wage determinations are published on the System for Award Management (SAM) website at https://sam.gov/content/wage-determinations for contracting agencies to incorporate them into covered contracts. In some cases, upon request of contracting agencies, DOL will issue a “project wage determination” setting out prevailing wage and fringe benefit rates for a specific construction project.
• The contracting agency has the initial responsibility to determine whether a contract is covered by the DBRA and, if so, to incorporate the Davis-Bacon contract clauses at 29 CFR 5.5 (FAR 52.222-6 through 52.222-15 for covered contracts subject to the FAR) and the applicable wage determinations into the prime contract. See 29 CFR 5.6(a)(1)(i). Any question related to the applicability of the DBRA or the appropriate wage determination must be referred to the Administrator of WHD for an appropriate ruling or interpretation. However, with respect to contracts entered into after October 23, 2023 (the effective date of the final rule amending the DBRA regulations), the labor standards contract clauses and appropriate wage determinations are effective by operation of law and are considered to be incorporated even when they have been wrongly omitted from a covered contract. See 29 CFR 3.11 and 5.5(e). Where operation of law applies, prime contractors must be compensated for any difference in labor costs resulting from the incorporation in accordance with applicable law. See 29 CFR 5.5(e).
• The prime contractor must then ensure that the contract clauses and applicable wage determinations are flowed down into all subcontracts.
• Contractors are required to pay covered workers their prevailing wages and fringe benefits weekly and to submit weekly certified payroll records to the contracting agency. They are also required to post the applicable Davis-Bacon wage determination(s) with the Davis-Bacon poster (WH-1321) on the job site in a prominent and accessible place where they can be easily seen by the workers.

DBA coverage

• ◊ The DBA applies to contracts “in excess of $2,000, to which the Federal Government or the District of Columbia is a party, for construction, alteration, or repair, including painting and decorating, of public buildings and public works.” 40 USC 3142. Each element of the statutory requirements for coverage is discussed below.

Monetary threshold

• The $2,000 threshold for coverage applies to the amount of the prime contract, not to the amount of individual subcontracts. If the prime contract exceeds $2,000, all work on the prime contract and its subcontracts is covered.

“United States or the District of Columbia”

• The term “United States or the District of Columbia” includes all executive departments, independent establishments, administrative agencies, and instrumentalities of the United States and of the District of Columbia, including non-appropriated fund instrumentalities and any corporation for which all or substantially all of its stock is beneficially owned by the United States or by the foregoing departments, establishments, agencies, or instrumentalities.

Contract for construction

• For purposes of the DBA, construction (including alteration and/or repair) includes all types of work done on a particular building or work on the site of the work. 29 CFR 5.2. A prime contract is for construction as long as it requires more than an incidental amount of construction, so the DBA can be applicable to a prime contract even when the primary purpose of the contract is not construction. This may result in hybrid contracts, where the DBA applies along with the Service Contract Act (SCA) or the Public Contracts Act (PCA).
• Whether a contract includes more than an incidental amount of construction depends upon the specific circumstances of each particular contract. Factors to be considered include the nature of the prime contract; the techniques, materials, equipment, and skills used by workers; the extent to which the work requires structural modifications; and the cost of the construction work.
• Contracts for construction do not have to be procurement contracts or contracts subject to the FAR. Contracts involving an agreement that particular construction will occur, coupled with Federal funding of that construction, will be DBA-covered, regardless of the particular form or format that the agreement takes, and assuming other relevant coverage requirements are met.
• Examples of contracts for construction can include, but are not limited to, leases contemplating publicly funded construction, agreements to privatize government functions that require more than an incidental amount of construction, and agreements conveying government-owned property in exchange for construction of new government facilities.

“Public building or public work”

• “Public building or public work” is a construction project “carried on directly by authority of or with funds of a federal agency to serve the interest of the general public regardless of whether title thereof is in a Federal agency.” 29 CFR 5.2.
• “Public building or public work” also includes the construction of a portion of a building or work that is carried on directly by authority of or with funds of a Federal agency to serve the interest of the general public, even where construction of the entire building or work does not fit within this definition.
• Like the structure of the federal contract, the structure of the federal funding does not determine DBA coverage. WHD will consider any expenditure or transfer of funds or an asset of financial value directly or indirectly in exchange for construction to meet this requirement. Public funding can therefore include, for example, financial support of construction through means such as grants, awards, subsidies (whether through direct payments or targeted tax reductions), or the conveyance or other transfer of real property
• or other assets directly or indirectly in exchange for construction, not merely direct payments to a construction contractor or use of appropriated funds.
• While government ownership or operation of a project is an indicator that a project is a public building or public work, it is not required, as government funding alone strongly indicates that the project serves the public interest and may be covered by the DBA.

DBA applicability to leases requiring construction

• AAM 176 provides guidance on how to determine when the DBA applies to certain federal lease contracts that also call for construction of a public work or building. AAM 176 notes that DBA application to a lease contract can be determined only by reviewing the specific facts of the particular contract, and lists several factors to be considered:
  • the length of the lease;
  • the extent of government involvement in the construction project, such as whether the building is being built to Government requirements and whether the Government has the right to inspect the progress of the work;
  • the extent to which the construction will be used for private rather than public purposes;
  • the extent to which the costs of the construction will be fully paid for by the lease payments; and
  • whether the contract is written as a lease solely to avoid application of the DBA.
• AAM 176 is based on the decision of the DOL Wage Appeals Board in In re Crown Point, Ind. Outpatient Clinic, WAB No. 86-33, 1987 WL 247049 and a May 23, 1994 Department of Justice/Office of Legal Counsel (DOJ/OLC) memorandum, Reconsideration of Applicability of the Davis-Bacon Act to the Veteran Admin.’s Lease of Med. Facilities, 18 Op. O.L.C. 109 (May 23, 1994).
• If there are any questions concerning the applicability of DBA coverage in a lease/construction situation, please contact WHD at dgceinquires@dol.gov.

Geographic scope

• The DBA applies to public buildings and public works of the Federal Government or the District of Columbia within the geographic limits of the 50 States of the United States and the District of Columbia.
• The DBA also applies in the Commonwealth of the Northern Mariana Islands as a result of a unique relationship established between the Northern Mariana Islands and the United States under the “ Covenant to Establish a Commonwealth of the Northern Mariana
• Islands in Political Union with the United States of America.”
• The DBA does not apply to federal construction contracts in Guam, Puerto Rico, the Virgin Islands or other territories. However , some “Related Acts” which provide federal assistance to construction activities in these territories require the payment of Davis-Bacon prevailing wage rates.

Davis-Bacon Related Act coverage

What are the Davis-Bacon Related Acts (Related Acts)?

• Congress has enacted numerous federal laws that authorize federal assistance for construction projects, including but not limited to grants, loans, loan guarantees, and insurance. Many of these laws require funding recipients to comply with the DBA requirements, including payment of applicable prevailing wage rates, on their funded projects. Such laws are commonly referred to as Davis-Bacon Related Acts.
• Some examples of assistance provided under Davis-Bacon Related Acts include:
  • Federal Highway Administration grants to states for the reconstruction of roads and bridges under the Federal Aid to Highways Act.
  • U.S. Department of Housing and Urban Development financing for the construction of low-income residences on housing authority projects through FHA mortgage insurance under the National Housing Act.
  • Department of Education ESSER grants for construction of schools under the Elementary and Secondary Education Act of 1965.
  • Department of Energy Weatherization Assistance Program grants funded by the Infrastructure Investment and Jobs Act.
• WHD provides a listing of Related Acts with Davis-Bacon labor standards provisions on its website at https://www.dol.gov/agencies/whd/government-contracts. While this list is regularly updated, it may not include all current Related Acts.

Related Act coverage

• Related Acts may contain specific language or criteria that affect coverage for the construction supported by the federal assistance they provide. Thus, a determination of whether Davis-Bacon prevailing wage provisions apply under a Related Act requires an analysis of the labor standards provision in the Related Act itself, as the language of the Related Act may direct broader or narrower coverage than the DBA provides. Examples include:
  • Related Acts frequently limit the application of the Davis-Bacon prevailing wage requirements only to certain funding programs authorized by each Act. For example, section 41101 of the Infrastructure Investment and Jobs Act applies Davis-Bacon prevailing wage requirements only to funding provided under Division D. Similarly, the labor standards provision of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) applies only to projects funded in whole or in part under Section 104 of the Act.
  • Some Related Acts include thresholds on project size for the application of coverage. For example, the Davis-Bacon labor standards provision of the Housing and Community Development Act of 1974 does not apply to the rehabilitation of residential property that contains fewer than 8 units, and the labor standards provision of Title II of the National Affordable Housing Act of 1990 (HOME) does not apply if there are fewer than twelve HOME-assisted units in the project.
  • Related Acts may also include language that provides a broader scope of coverage than the DBA. For example, many Related Acts apply to construction performed in the U.S. territories, while some HUD Related Acts have no site of the work limitation.
• Unless the language of the Related Act specifies otherwise, when a project receives any funding that requires payment of Davis-Bacon prevailing wages, construction work at the site of the work for the entire project is generally subject to Davis-Bacon prevailing wage requirements, regardless of how the funding recipient chooses to allocate that funding among the different activities relating to that project.
• While the DBA does not have any provision granting DOL the authority to waive its application, certain Related Acts may provide for a potential waiver or exception by the administering agency.

Contractors and subcontractors

Contractors

• “Contractors” covered under the Davis-Bacon labor standards include:
  • Any individual or other legal entity that enters into or is awarded a covered contract, including a prime contract or a subcontract of any tier under a covered prime contract.
  • Any surety that is completing performance for a defaulted contractor under a performance bond.
• The U.S. Government, its agencies, and instrumentalities, are not contractors or subcontractors.
• State and local governments are generally not considered to be contractors or subcontractors. Many Related Acts state that prevailing wage rates must be paid to laborers and mechanics who work for contractors or subcontractors. For such Related Acts, if the state or local government uses its own employees to perform the construction work, the government agency would not have to pay its employees prevailing wage rates. However, some Related Acts require payment of prevailing wages to all laborers and mechanics employed on the assisted project, not merely to laborers and mechanics who perform work for contractors or subcontractors. State and local recipients of Federal aid must pay their employees who perform work on such projects according to Davis-Bacon labor standards.

Prime contractors

• In addition to the contracting entity itself, the prime contractors for a contract may include the controlling shareholders or members of any entity holding a prime contract, the joint venturers or partners in any joint venture or partnership holding a prime contract, and any contractor (e.g., a general contractor) that has been delegated the responsibility for overseeing all or substantially all of the construction anticipated by the prime contract.
• For example, if a general contractor secures two prime contracts for two Related Act-covered housing projects through separate single-purpose entities that it controls, the cross-withholding language at 29 CFR 5.5(a)(2), with respect to contracts entered into after October 23, 2023, would allow the Department to seek cross-withholding against either contract even though the contracts are nominally with separate legal entities.

Subcontractors

• “Subcontractors” include any contractor that agrees to perform or be responsible for the performance of any part of a covered contract. The term includes subcontractors of any tier.

Material suppliers

• Except for some Related Acts with a broader coverage scope, the Davis-Bacon labor standards do not apply to “material suppliers.” Thus, if a worker is employed by a material supplier, the worker is not covered by the Davis-Bacon labor standards, even for time spent on the site of the work.
• An entity is considered a material supplier only if all of the following criteria are met:
  • Its only obligations for work on the contract or project are the delivery of materials, articles, supplies, or equipment. These obligations may include pickup in addition to, but not exclusive of, delivery. They may also include activities incidental to delivery and pickup, such as loading, unloading, or waiting for materials to be loaded or unloaded.
  • Its facility or facilities that manufactures the materials, articles, supplies, or equipment used for the contract or project:
    • Is not located on, or does not itself constitute, the project or contract’s “primary construction site” or “secondary construction site,” and
    • Either was established before opening of bids on the contract or project, or is not dedicated exclusively, or nearly so, to the performance of the contract or project.
  • If an entity does not meet all of the above criteria, it is not a material supplier, but a contractor or subcontractor, and Davis-Bacon prevailing wage requirements therefore apply to its laborers and mechanics for any work performed on a site of the work.

Construction, alteration, and repair

Definition

• 29 CFR 5.2 defines construction as all kinds of work performed on a building or work at the site of the work by laborers or mechanics who work for a contractor or subcontractor, not merely new construction or renovation. The definition includes, but is not limited to, altering, remodeling, onsite installation of items fabricated offsite, painting and decorating, onsite manufacturing or furnishing of materials, articles, supplies or equipment, certain transportation activities, and demolition or removal in certain circumstances.

Alteration or repair

• Alteration or repair includes the restoration or improvement of a building or work by modifications to its components, systems, or materials.
• It may improve the current state of the building or work by upgrading aspects such as the building or work’s structural strength, stability, safety, capacity, efficiency, or usefulness, or may fix an existing element that is no longer functioning correctly.
• Whether work constitutes repair or maintenance is a fact-specific question. Additional information on the distinction between repairs (potentially covered under the Davis-Bacon labor standards) and maintenance (potentially covered under SCA) is included in the Prevailing Wage Resource Book, Determining Which Labor Standards Apply.

Installation

• Davis-Bacon coverage has been found to apply to work such as installing a security system or an intrusion detection system, installing permanent shelving which is attached to a structure, installing air-conditioning ducts, excavating outside cable trenches and
• laying cable, installing heavy generators, mounting radar antenna, and installing instrumentation grounding systems.
• Because installation may be considered construction work, supply contracts that also require installation may have a Davis-Bacon component. More information about hybrid supply and Davis-Bacon contracts is included in the Prevailing Wage Resource Book, Determining Which Labor Standards Apply.

Manufacturing

• In general, manufacturing is not considered construction under the DBRA.
• However, manufacturing that is performed by laborers or mechanics working for a contractor or subcontractor on a location that is part of the site of the work is covered.

Transportation

• Transportation activities are considered to be covered under certain circumstances when performed by workers employed by contractors or subcontractors. The scope of covered transportation is explained further in the section below titled “Truck Drivers.”

Demolition or removal

• Demolition or removal is covered under the DBRA in any of the following circumstances:
  • Where the demolition and/or removal activities themselves constitute construction, alteration, and/or repair of an existing building or work. Examples of such activities include the removal of asbestos, paint, components, systems, or parts from a facility that will not be demolished; and contracts for hazardous waste removal, land recycling, or reclamation that involve substantial earth moving, removal of contaminated soil, re-contouring surfaces, and/or habitat restoration.
  • Where subsequent construction that will be covered in whole or in part by the DBRA is contemplated at the site of the demolition or removal, either as part of the same contract or as part of a future contract. This includes, for example, demolition of an old building so that a site can be used for construction of a new DBRA-covered building. In determining whether subsequent construction is contemplated, relevant factors include, but are not limited to, the existence of engineering or architectural plans or surveys of the site; the allocation of, or an application for, Federal funds; contract negotiations or bid solicitations; the stated intent of the relevant government officials; and the disposition of the site after demolition.
  • Where otherwise required by statute.
• If none of these circumstances apply—for example, the standalone demolition of a building with no future construction contemplated—demolition is generally considered a service rather than construction, and thus is potentially covered under the SCA. Further discussion of when demolition is covered under the DBA versus the SCA is included in the Prevailing Wage Resource Book, Determining Which Labor Standards Apply.

Site of the work

In general

• Davis-Bacon prevailing wage requirements generally apply only to work performed by laborers and mechanics on the site of the work.
• The “site of the work” limit does not apply, however, to the United States Housing Act of 1937; the Housing Act of 1949; the Native American Housing Assistance and Self-Determination Act of 1996; and/or to any Related Act that requires payment of prevailing wages under the Davis-Bacon labor standards to all laborers and mechanics employed in the development of a project and for which the WHD Administrator determines that Congress clearly intended to apply a different coverage standard.
• Additionally, the overtime pay requirements of the Contract Work Hours and Safety Standards Act (“CWHSSA”) are not limited to the site of the work. Thus, for example, if a worker performs work for a Davis-Bacon contract at the job site and then travels to, and continues to perform contract work at, a shop or other facility located elsewhere, all of those hours worked must be included in determining whether the worker performed over 40 hours of contract work and is entitled to CWHSSA overtime pay. For more information on CWHSSA, please see the CWHSSA section below.

Locations that constitute the site of the work

• Three types of locations are included in the “site of the work”:
  • The primary construction site(s);
  • Any secondary construction site(s); and
  • Any adjacent or virtually adjacent dedicated support sites.

Primary construction site

• The primary construction site is the physical place or places where the building or work called for in the contract will remain.
• While the primary construction site for smaller buildings or works may include no more than the building itself and its grounds, for larger projects, such as airports, highways, or
• dams, the primary construction site is necessarily more extensive and may include the
• whole area(s) in which the construction activity will take place.

Secondary construction site

• Secondary construction sites include any other site(s) where a significant portion of the building or work is constructed, as long as:
  • The construction is for specific use in that building or work and does not simply reflect the manufacture or construction of a product made available to the general public; and
  • The site is either established specifically for the performance of the contract or project, or dedicated exclusively, or nearly so, to the performance of the contract or project for a specific period of time.
• A “significant portion” of a building or work means one or more entire portion(s) or module(s) of the building or work, such as a completed room or structure, with minimal construction work remaining other than the installation and/or final assembly of the portions or modules at the place where the building or work will remain. It does not include materials or prefabricated component parts.
• A “specific period of time” means a period of weeks, months, or more, and does not include circumstances where a site with multiple projects are in progress temporarily shifts exclusively or nearly so to a single project for a few hours or days in order to meet a deadline.

Adjacent or virtually adjacent dedicated support sites

• The following support sites are also considered sites of the work:
  • Job headquarters, tool yards, batch plants, borrow pits, and similar facilities of a contractor or subcontractor that are dedicated exclusively, or nearly so, to performance of the contract or project, and adjacent or virtually adjacent to either a primary construction site or a secondary construction site.
  • Locations adjacent or virtually adjacent to a primary construction site at which workers perform activities associated with directing traffic (including pedestrian traffic) around or away from the primary construction site.
• The following support sites are not considered sites of the work, unless they meet the requirements to be considered a primary or secondary construction site:
  • Permanent home offices, branch plant establishments, fabrication plants, tool yards, etc., of a contractor or subcontractor whose location and continued operation do not depend upon a particular Federal or federally assisted contract or project.
  • Fabrication plants, batch plants, borrow pits, job headquarters, tool yards, etc., of a “material supplier,” established before opening of bids for a project or contract and not on the primary construction site or a secondary construction site, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a project or contract. For more information on “material suppliers,” please see “Material suppliers” above.

Questions

• Contracting agencies and/or contractors should consult WHD as soon as possible if questions arise as to whether a location should be considered a site of the work.

Laborers and mechanics

Who is a laborer or mechanic?

• As defined at 29 CFR 5.2, the term “laborer or mechanic” includes at least those workers whose duties are manual or physical in nature (including those workers who use tools or who are performing the work of a trade), as distinguished from work that is mental or managerial in nature.
• Working supervisors who devote more than 20 percent of their time during a workweek to mechanic or laborer duties, and who do not meet the criteria for the exemptions at 29 CFR part 541, are laborers and mechanics for those hours worked.
• Although guards and watchpersons generally are not considered laborers or mechanics under DBRA, they are covered by CWHSSA by virtue of its express statutory language.

Who is not a laborer or mechanic?

• The term laborer or mechanic does not include workers whose duties are primarily administrative, executive, or clerical, rather than manual. For example, architects, engineers, inspectors, and timekeepers who do not perform manual or physical labor on the contract are typically not considered to be laborers or mechanics.
• Persons employed in a bona fide executive, administrative, or professional capacity as defined in 29 CFR part 541 are not deemed to be laborers or mechanics. For these exemptions to apply, workers generally must be paid on a salary basis at a rate not less than that specified in the Department’s regulations, see 29 CFR 541.600, and must also meet the following duties requirements:
  • For the executive exemption, the worker must have as their primary duty the management of the enterprise that they work for (or a department or subdivision of that enterprise), they must customarily and regularly direct the work of two or more other employees, and they must have the authority to hire or fire other employees or their suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
  • For the administrative exemption, the worker must have as their primary duty the performance of office or non-manual work directly related to the management or general business operations of their employer or their employer’s customers, and their primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.
  • For the professional exemption, the worker must have as their primary duty the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, or work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
• Business owners are not considered to be laborers and mechanics if they meet the “management” requirements set out in 29 CFR 541.102 and if the individual:
  • Owns at least a bona fide 20 percent equity interest in the business enterprise; and
  • Is actively engaged in the management of the enterprise.
  • “Management” includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

Specific types of workers

Independent Contractors

• The DBA requires the payment of the applicable prevailing wage rates to all laborers and mechanics “regardless of any contractual relationship which may be alleged to exist.” This means that Davis-Bacon prevailing wage requirements apply to all laborers and mechanics engaged in construction on the site of the work, whether or not they are considered employees or independent contractors.
• Laborers and mechanics receiving a 1099 must still be paid Davis-Bacon prevailing wages and must still be reported on certified payroll statements. If a contractor or subcontractor classifies any covered worker as an independent contractor, the contractor or subcontractors should report on the certified payroll that FICA and taxes are not being withheld. The funding agency or funding recipient may ask that the certified payroll identify such workers in some fashion, so they know why FICA and taxes were not withheld.

Apprentices

• Bona fide apprentices are laborers and mechanics but are not listed on Davis- Bacon wage determinations. Bona fide apprentices may be paid less than the applicable rate for the classification of work performed if certain requirements are met, as discussed in the Prevailing Wage Resource Book, DBRA Compliance Principles.

Flaggers

• Workers, frequently known as flaggers or traffic directors, who engage in activities such as setting up barriers and traffic cones, using a flag and/or stop sign to control and direct traffic, and related activities such as helping heavy equipment move in and out of construction zones are considered to be laborers and mechanics and are therefore covered for time spent on the site of the work.
• Even if they are not working on the primary construction site, flaggers are still working on the site of the work if they work at a location adjacent or virtually adjacent to the primary construction site, such as a few blocks away or a short distance down a highway, and, therefore, will typically be covered under the Davis-Bacon labor standards.
  • Workers employed by a traffic service company that meets the definition of a material supplier are not covered. As discussed above, however, a company is a material supplier if it only performs delivery of materials, articles, supplies, or equipment activities and activities incidental to delivery, and does not perform any additional onsite construction work such as flagging.
  • Thus, if a traffic service company’s workers are engaged in flagging activities on the site of the work, the company is not a material supplier.

Helpers

• A distinct classification of helper will be published in Davis-Bacon wage determinations only where all of the following conditions are met:
  • The duties of the helper are clearly defined and distinct from those of any other classification on the wage determination;
  • The use of such helpers is an established prevailing practice in the area; and
  • The helper is not employed as a trainee in an informal training program.
• If these requirements are not met, helpers are considered to be within the classification(s) of laborer or mechanic on the wage determination that typically perform the work duties performed by the helper. A helper classification may be added to wage determinations by the conformance procedures established by 29 CFR 5.5(a)(1)(iii)(A) only where the three conditions above have been satisfied and, in addition, the work to be performed by the helper is not performed by a classification in the wage determination.

Truck Drivers

• Truck drivers or driver assistants who perform work for the contractor are covered under the Davis-Bacon labor standards during the following types of transportation:
  • Transportation that takes place entirely within a location meeting the definition of “site of the work,” such as hauling materials from one location on a worksite to another.
  • Transportation of a “significant portion” of a building or work between a “secondary construction site” and a “primary construction site.”
  • Transportation between an “adjacent or virtually adjacent dedicated support site“ and a “primary construction site” or “secondary construction site.”
  • Onsite activities essential or incidental to offsite transportation, such as loading, unloading, or waiting for materials to be loaded or unloaded, where the worker engaged in those activities spends more than a de minimis amount of time on the “site of the work.”
    • The analysis of whether a driver’s time on site is more than de minimis is fact-specific and based on the totality of the circumstances, but generally excludes periods of “a few minutes” onsite only to drop off materials.
    • The total amount of time a driver spends on the site of the work during a typical day or workweek—not just the amount of time that each delivery takes—is relevant to a determination of whether the onsite time is de minimis. Accordingly, short periods of time that in isolation might be considered de minimis should be aggregated.
    • Any transportation and related activities, whether on or off the site of the work, by laborers and mechanics employed in the construction or development of the project under a statute that does not limit coverage to the site of the work.
• For more detailed information on the meanings of “site of the work,” “primary construction site,” “significant portion,” and “adjacent or virtually adjacent dedicated support site,” please see the “Site of the work” section above.
• Examples of situations where truck drivers are not covered under the Davis-Bacon labor standards include the following circumstances:
  • Drivers employed by material suppliers under any circumstances. For more information on “material suppliers,” please see “Material suppliers” above.
  • Drivers employed by contractors or subcontractors for any time spent off of the site of the work, unless they are transporting “significant portions” of a public work to or from a secondary construction site or transporting supplies or materials between a primary or secondary worksite and an adjacent or virtually adjacent dedicated support site.
  • Drivers employed by contractors or subcontractors whose time spent on the site of the work is merely de minimis.
• DOL has an enforcement position with respect to bona fide owner-operators of trucks who own and drive their own trucks. Certified payrolls that include the names of such owner-operators do not need to show the hours worked or rates paid, only the notation “owner-operator.” (WHD does not view rental of a truck as equivalent to ownership.) This position does not apply to owner-operators of other equipment such as bulldozers, backhoes, cranes, welding machines, etc.
• Because CWHSSA does not have a site-of-the-work limitation, overtime pay requirements under CWHSSA apply to truck drivers employed by contractors and subcontractors regardless of whether the hours worked on the contract are on or off the site of the work.

Survey Crew Members

• Members of survey crews who perform primarily physical and/or manual work while employed by contractors on Davis-Bacon covered projects on the site of the work immediately prior to or during construction in direct support of construction crews may be laborers or mechanics subject to the Davis-Bacon labor standards.
• Whether or not a specific survey crew member is covered by these standards is a question of fact, which takes into account the actual duties performed and whether these duties are “manual or physical in nature” including the “use of tools or . . . work of a trade.”
• When considering whether a survey crew member performs primarily physical and/or manual duties, it is appropriate to consider the relative importance of the worker’s different duties, including (but not solely) the time spent performing these duties.
• Survey crew members who spend most of their time on a covered project taking or assisting in taking measurements would therefore typically be considered laborers or mechanics (provided that they do not meet the tests for exemption as professional, executive, or administrative employees under 29 CFR part 541).

Volunteers

• There are no exceptions to Davis-Bacon coverage for volunteer labor unless an exception is specifically provided for in the particular Related Act under which the project funds are derived. Furthermore, WHD does not have the authority to grant waivers for volunteer labor.