A prevailing wage job is typically a government funded project. The Davis-Bacon and Service Contract Acts govern federal projects. Most states have a prevailing wage law, but there are some that do not so it is a good idea to know the rules before you bid a project.
Governments, in their idea of fairness, mandate union rules and compensation packages on the jobs. So, one of the simple ways to prepare yourself to do prevailing wage jobs is to have an action plan at the ready that will allow you to cope with the requirements. We will briefly discuss the compensation package.
All prevailing wage projects will come with wage determination schedules that detail the base rate and fringe rates for all craft and trades. The base rate most likely will be the union W-2 payroll rate for the local collectively bargained craft and trades. The wage determinations (WD) will vary because of this. So, it is very possible to see a WD in one part of a state or county different from another. Make sure you are working with the WD that applies to where the job is located, and that they are dated for the time you are on the project. If you are apt to work through the date on you WD, ask the contract office for the new one. You will be held liable for the rates.
The fringe rate is the most confusing for many contractors. The fringe rate is the hourly cost of the collectively bargained benefit package for the craft and trade where the job is located. Fringe rates can vary just as base rates can vary and a contractor must make sure they are working with current fringe rates. The government expects each contractor to pay into bona fide benefit plans at the same rate while on a prevailing wage job. It is easy for the union contractor, but often difficult for the non union contractor because the hourly cost of his employer paid benefits is likely to be less than the fringe rate. If this is the case, the government will compel the non union contractor to pay the difference to payroll.
Non union contractors must understand that they can’t really put fringe dollars into payroll. They must actually pay a bonus equal to the fringe rate liability. Fringe dollars are business expenses, payrolls are wage expenses. Big difference. Fringe dollars as payroll will be subject to FICA and Medicare, SUTA and FUTA taxes. In addition, the bonus will inflate the basis for general liability insurance and workers compensation. Worse yet, fringe dollars to bona fide plans don’t have to be paid weekly. Many contractors don’t get paid frequently enough for weekly payrolls and are forced to use lines of credit until being paid. So, many non union contractors wind up paying fringe dollars as bonuses with borrowed money. Little wonder so many non union contractors do prevailing wage jobs unprofitably.
There is hope however. The action plan must have at the ready bona fide benefit plans that can be legally adopted for the project and expensed as business expenses and not payroll. We can help you develop a prevailing wage action plan. Contact Nancy for more details.
By Jim Abrams, Associated Press – Saturday February 19
WASHINGTON – The House early Saturday turned back an effort to suspend a Depression-era law, the Davis Bacon Act, that requires federal contractors to pay locally prevailing wage rates. The vote came amid heightened clashes between the two parties over labor rights.
Lawmakers voted 233-189 against barring spending on Davis-Bacon wage requirements on federal work projects for the remainder of this budget year. The measure was offered by Rep. Steve King, R-Iowa, as an amendment to a massive spending bill to keep the government running through Sept. 30,
Republicans have long targeted the 1931 law, saying it drives up the costs of public works projects and favors unionized companies over smaller firms that can’t pay higher wages.
Davis-Bacon enjoys strong support from Democrats and the King amendment, had it passed, would have met strong resistance in the Democratic-controlled Senate and opposition from President Barack Obama.
The vote came as Wisconsin’s new Republican Gov. Scott Walker has set off a firestorm of protests by seeking to curtail the collective bargaining rights of public workers and several other GOP-led states are looking to cut state worker benefits as part of budget-cutting efforts. Obama said in a radio interview that Walker’s legislation was an “assault on unions.”
The House this week also rejected a GOP proposal to eliminate funds for the National Labor Relations Board. The Republican spending bill would still cut $50 million, or 18 percent, from the agency that referees disputes between workers and employers.
King cited an analysis by the Heritage Foundation estimating that Davis-Bacon would add more than $10.9 billion to the deficit this year. He said locally prevailing wage rates tend to reflect the higher pay scale of union workers in the area and average some 22 percent above standard wage rates in locales.
Rep. Robert Andrews of New Jersey, a senior Democrat on the Education and the Workforce Committee, said there “was no basis in fact, it is more of an urban legend,” that adhering to prevailing wages drives up labor costs. He said that if accurately measured a prevailing wage doesn’t add to costs and promotes a stable local labor force.
Two years ago, when Democrats controlled the House, the chamber voted 284-140 to defeat a proposal to exempt wastewater infrastructure projects from Davis-Bacon rules.
Read the entire article and join the discussion here.
Payroll which involves the payment of Davis Bacon or prevailing wage can be quite complex, especially for non-union or open shop contractors, who work on both private and prevailing wage jobs.
When a contractor works on both prevailing wage and non-prevailing or private jobs there is often times two different sets of hourly wage rates that an employee might be paid; one for when he works on a Davis Bacon project and another, usually lower rate, for when the company works on a non-prevailing wage job.
One specific and complex issues involves the question of whether or not the contractor is required to pay his/her employees the Davis Bacon wage scale rate for the holidays that they are eligible for OR if they can pay them their normal non-scale rate that they are paid on private or non-prevailing wage jobs.
Unfortunately, this is one of those “gray areas” that many contractors and their payroll clerks run into.
Davis Bacon rules clearly state that an employee must be paid the appropriate prevailing wage rate PLUS applicable hourly fringe benefit rate, based on the type of work he or she is preforming, for each hour that they spend on the job site.
In some cases, it is a safe assumption then, that the employee can be paid his normal non-prevailing rate of pay for any paid holidays.
However, I have sometimes seen in the Labor Standard clause (a section of the actual contract that spells out the contractors responsibilities regarding payment of prevailing wages) a section that specifically states that employees must be paid the higher wage rate for specific holidays.
The bottom line about Davis Bacon Wages & Holiday Pay:
- Read the Labor Standards clause of the contract carefully when you receive the bid package AND again when you receive the final contract.
- Make sure that you give the person responsible for processing payroll a copy of the Labor Standards clause AND the prevailing wage determination, so they will pay the employees appropriately.
If in doubt about your liability to pay prevailing wage PLUS applicable fringe benefits for Holidays, follow the appropriate protocol; and send a letter to whoever awarded you the contract – be it the General Contractor or the Contract Administrator. Always leave a paper trail.
If you’ve found this article to be helpful, please consider taking a moment of your time to leave a comment.
I found this article online, written by Roberto Rossi – I have no idea who he is, but the article is interesting and factual.
Prevailing wage laws have been the focus of public policy debate at the federal and state levels for decades. They are intended to protect workers and communities by ensuring that contractors compete on the ability to perform work competently and efficiently while maintaining community compensation standards.
Prevailing wage laws require that construction workers on public projects be paid the wages and benefits that are found to be “prevailing” for similar work in or near the locality in which the construction project is to be performed. The federal Davis-Bacon Act is enforced by the federal Department of Labor. It requires that private contractors pay construction workers the prevailing wage/benefit package on all contracts of more than $2,000 for construction, alteration, or repair of federal public buildings or public works. The federal law surveys contractors but contractors are not required to respond to the survey.
Oregon enacted its prevailing wage law in 1959 and then-governor Mark Hatfield signed it into law. It requires that prevailing wages be paid on projects that exceed $25,000 ($50,000 as of 1/1/006). Under state law, the commissioner of the Bureau of Labor and Industries enforces the state law and sets prevailing wage rates twice a year based upon a survey contractors in Oregon are required to complete.
The state law has been challenged several times, but in the last attempt, in 1994, 62 percent of Oregon voters favored retaining the law including a majority in each of Oregon’s 32 counties. The state Legislature has made changes to Oregon’s law several times. In 1989, the Legislature clarified the law’s definition of public works revising the threshold test by adding the phrase “contracted for by”. The first prong of the test now is whether the construction work is .“carried on or contracted for by any public agency to serve the public interest.” In addition, the 1995 Oregon Legislature reaffirmed the goals of the prevailing wage law and instituted the state survey in lieu of relying upon the federal survey. In the just completed 2005 session, legislators passed SB 477, which among other changes, raised the threshold for projects qualifying under the law from $25,000 to $50,000.
Many still argue that the economic hardships of the depression era ushered in the federal Davis-Bacon Act, but others argue it was the desire of states and local government to protect itself against fly-by-night, low-wage construction firms winning bids on public contracts and adversely impacting local construction workers. In the early 1930s, federal and state governments were preparing to construct even more large public projects and they sought to protect themselves from falling contractors who performed “shoddy” work with “exploited,” “low-skilled” and an “imported” workforce.
Interestingly enough, those were not the words of labor advocates, but of the bill’s primary sponsors, Congressman Robert Bacon (R-NY) and Senator James Davis (R-PA), who viewed their bill not so much as a means to protect workers, but more as a way of providing some market stability in what was, and still is, an inherently unstable construction industry.
Bacon, a former banker, explained the need for the law when he detailed for his legislative colleagues how an out-of-state construction firm paying extremely low wages transported thousands of unskilled workers hundreds of miles to toil on a public project in New York:
“They were herded onto this job, they were housed in shacks, they were paid a very low wage, and … it seems to me that the federal government should not engage in construction work in any state and undermine the labor conditions and the labor wages paid in that state.”
Davis, the former Secretary of Labor under Presidents Harding, Coolidge and Hoover, went on to argue that “the least the Federal Government can do is comply with the local standards of wages and labor prevailing in the locality where the building construction is to take place.”
Some critics of prevailing wage laws have tried to place a “racist” label upon the original passage of the Davis-Bacon Act in 1931. While some may have had some intent to keep poor black construction workers from moving north to work, others saw it for what it still represents today – a way to assure that public money is not spent by hiring employers who pay low wages and disrupt the wage scale in other communities.
However, some critics still charge that the prevailing wage rate law continues to discriminate against minority and female contractors. In response to a May 22, 1992 Wall Street Journal making such accusations, Rep. Edolphus Towns rose on U.S. House floor on June 24, 1992 in rebuttal:
“The truth is, minority and female workers have entered the construction industry in increasing numbers over the past fifteen years. Because they are often the newest members of the industry, they are particularly vulnerable to wage-cutting practices the Davis-Bacon Act is designed to prohibit. Norman Hill, president of the A. Philip Randolph Institute, has characterized women and minority workers as `particularly vulnerable to exploitation such as the Davis-Bacon Act of 1931 is designed to prohibit.’”
Before passage of the Davis-Bacon Act in 1931, nine states and several cities had already passed a prevailing wage law. Within four years of Davis-Bacon’s passage, sixteen more states added a state-level prevailing wage law (little Davis-Bacon acts). At one time or another, forty-two states and the District of Columbia have had a prevailing wage law. Thirty-two states currently have state prevailing wage laws on their books.
Since the U.S. Constitution prohibits the federal government from dictating contract terms for the states in construction, the Davis-Bacon Act does not cover construction work funded entirely by state and local governments. State prevailing wage laws set a minimum pay for construction workers on state and local projects, and the terms of the respective prevailing wage statutes among the states differ substantially. The prevailing wage laws of some states are non-binding, while other states set wages for virtually all contracts at the collectively bargained wage rate. In addition, different states treat jointly financed projects (e.g. state/federal, local/federal, private/public) differently. Some states defer to the federal statute while other states set the prevailing wage at the higher of the state or federal prevailing wage. Certain states also specifically include or exclude specific types of projects (e.g. road construction) and/or workers, and/or projects above or below a given threshold.
Kansas passed the first prevailing wage law in 1891. New York was the second state to pass a prevailing wage law in 1894. Similar laws in other states were passed in the first part of the twentieth century. These laws provided the legal basis for the creation of the federal Davis-Bacon prevailing wage law at the federal level. By 1969, 41 states had prevailing wage statutes.
During the 1970s, many states began to suffer fiscal crisis. On the belief that they might save tax dollars, many state and local governments began to consider repeal of prevailing wage laws. Florida, which had enacted a prevailing wage law in 1933, was the first to repeal its law, in 1979. Eight states (Alabama, Arizona, Colorado, Idaho, Kansas, Louisiana, New Hampshire, and Utah) repealed their prevailing wage statutes in the 1980s. The prevailing wage statute in Oklahoma was invalidated by a court decision in 1995. At the present time, 32 states and the District of Columbia still have prevailing wage statutes, 10 states have repealed their prevailing wage statutes, and 8 states have never enacted a prevailing wage statute.
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Author’s Note:
As of the date of this article:
- 24 States follow the prevailing wage reporting requirements established by the U. S. Department of Labor and are required to file the Federal WH-347 Certified Payroll Report & WH-348 Statement of Compliance.
- 14 States have their own prevailing wage laws and certified payroll reporting requirements and forms, which must be used when the construction project is fully funded with state dollars.
- 12 States have multiple state agencies, each with their own prevailing wage reporting requirements and forms.
- More states are adding electronic filing requirements, either of their own design or through the use of compliance systems by TRS Consultants, Elation Systems, or LCPtracker.
A reader wrote to ask the following question:
We were just awarded a contract with the Department of Defense and have to pay our employees “prevailing wage” and submit certified payroll reports. I called Intuit Support to ask them about prevailing wage, certified payroll, and how to track the fringe benefits; they weren’t very helpful – they just told me that QuickBooks can produce the certified payroll report…….can you help me understand all this?
Answer:
Ok, let’s start with some basics:
- The Davis-Bacon Act of 1931 (a Federal Law) set wage rate requirements on government funded construction projects.
- All contractors & subcontractors who perform work on these public works projects, that have a value of $2,000.00 or more, are required to submit a certified payroll report on a weekly basis.
Prevailing Wage(s) rates are comparable to hourly wages PLUS hourly fringe benefit rates for the area in which the construction project is located in, type of construction it is, and the type of work employees are doing – carpenter, laborer, equipment operator, etc. Prevailing Wage Rates are found in the Contract Package and each employee must be classified and paid accordingly – these rates are often times higher than the hourly rate that you normally pay your employees.
A certified payroll report is a specially formatted payroll report, consisting of two pages:
- Certified Payroll Report – this contains information about who worked on the job, how much you paid them, etc.
- Statement of Compliance – this contains certain legal language and requires the original signature of a company official who is signing the document under penalty of perjury.
In your case, you will be required to file the U. S. Department of Labor Form WH-347 Certified Payroll Report, however, because this is a Department of Defense job – you will need to submit their Statement of Compliance (even though it has an expiration date of June 30, 2000).
Paying and tracking prevailing wage fringe benefits gets quite complicated, as they can be:
- paid to a Union on behalf of the employee
- paid to a bona-fide fringe benefit plan on behalf of the employee
- paid in cash to the employee
- or, a portion of the total hourly fringe benefit amount can be split between payments to a bona-fide plan with the balance in cash to the employee
Request our FREE 27 page eBook – 4 Ways Contractors Pay Prevailing Wage Fringe Benefits
Intuit was partially correct, QuickBooks does have an alternate/substitute Certified Payroll Report built into it – however, it is only available if you have an Enhanced Payroll Subscription AND you are using QuickBooks Premier (any flavor – Contractor, Accountant, etc) 2009 or 2010 OR Enterprise 9.0 and 10.0; but it is very different than the Federal WH-347 form.
What Intuit didn’t tell you – is that these prevailing wage projects require more than just the submission of a certified payroll reports, you may also be required to:
- submit EEOC/Work Utilization reports on a weekly, monthly or annually
- submit ARRA (American Recovery & Reinvestment Act) reports on a monthly basis
- generate Fringe Benefit Statements on a monthly basis (if you are paying the fringe benefits to the Union or a bona-fide plan)
- electronically file your certified payroll reports using Labor Compliance programs such as LCPtracker, TRS Consultants, Elation Systems, and others.
Watch a brief 10-minute video demonstrating how Certified Payroll Solution interfaces with QuickBooks to generate these reports.
