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The Davis-Bacon Act and the Davis-Bacon Act Related Acts (the “Acts”), and their corresponding rules circulated by the Department of Labor (DOL), propose the rules for the administration and enforcement of the Acts’ labor standards, which apply to federal and federally-assisted construction contracts. The DOL is currently undertaking the first comprehensive regulatory rule review of its rules issued under the Acts in nearly 40 years. According to the DOL, the review is necessary to “better reflect the needs of workers in the construction industry and planned federal construction investments.1” The DOL issued a notice of proposed rulemaking in March of this year, with comments closing on May 17th, 2022. According to the DOL, notable changes under the proposed rules include the following:

  • Creating several efficiencies in the prevailing wage update system and ensuring prevailing wage rates keep up with actual wages, which over time would mean higher wages for workers.
  • Returning to the definition of “prevailing wage” used from 1935 to 1983 to ensure prevailing wages reflect actual wages paid to workers in the local community. In other words, returning to this definition would mean that if no wage rate is found prevailing among a majority of workers, wage rates may be found to be “prevailing” if a wage rate is found to be paid to at least 30 percent of the local workforce in a given trade.
  • Periodically updating prevailing wage rates to address out-of-date wage determinations.
  • Providing broader authority to adopt state or local wage determinations when certain criteria is met.
  • Issuing supplemental rates for key job classifications when no survey data exists.
  • Updating the regulatory language to better reflect modern construction practices.
  • Strengthening worker protections and enforcement, including debarment and anti-retaliation.
  • Expanding what is considered the “site of the work” for purposes of the Act’s applicability. Specifically, the definition of the “site of the work” would no longer be confined to the construction site, and it may include some offsite manufacturing and pre-fabrication sites.
  • Expanding what is considered to be covered construction and a “building or work” for purpose of the Act’s applicability. For example, the term “building or work” would include solar panels, wind turbines, broadband installation, and installation of electric car chargers in the non-exclusive list of construction activities encompassed by the definition.2

Should these proposed rules be adopted and implemented, they will have a significant impact on owners, contractors, and subcontractors alike with respect to construction costs, compliance, enforcement, and administrative responsibilities. Our attorneys will continue to monitor the rulemaking process and provide updates as they become available.

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1 https://www.dol.gov/newsroom/releases/whd/whd20220311; https://www.federalregister.go...

2 Id.