On March 22, 2013, Mary Beth Maxwell, the Acting Deputy Administrator for the Wage and Hour Division of the U.S. Department of Labor, issued Memorandum No. 212 that significantly altered the application of the Davis-Bacon Act to survey crews on federally funded construction projects. While Acting Deputy Administrator Maxwell characterized the Memorandum as guidance that “supplemented” guidance in Memoranda issued in 1960 and 1962, the fact of the matter is that whereas survey crews were generally excluded from Davis-Bacon Act coverage prior to the issuance of her Memorandum, they are now generally going to be included.
This action was accomplished through a revision to Section 15e20 of the Field Operations Handbook, which is the enforcement “bible” for DOL investigators. The previous language of Section 15e20(b) included the following:
“As a general matter, members of the survey party who hold the leveling staff while measurements of distance and elevation are made, who help measure distance with a surveyor chain or other device, who adjust and read instruments for measurement or who direct the work are not considered laborers or mechanics. However, a crew member who primarily does manual work, for example, clearing brush, is a laborer and is covered for the time so spent.”
The new language appears designed to reverse this presumption. It appears that the Operating Engineers Union successfully lobbied the Department of Labor for this change. Since the Department of Labor has not normally included these classifications in its surveys for purposes of wage determinations, the Memorandum advises that the conformance process will be used until future surveys include these classifications.
By letter dated July 11, 2013, the Chairman of three Congressional committees or subcommittees questioned Acting Deputy Administrator Maxwell on this significant change in long-standing policy and asked for information, including documents relating to the Operating Engineers Union’s request for this change.
Both engineering firms who may do survey work on federal projects and general contractors who may hire survey crews need to be aware of this change so that they are not found in violation of the Davis-Bacon Act. Please feel free to contact Harmon & Davies if you need additional information.
This article is authored by attorney Tom Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
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