Land Surveyors are Not Laborers

[DWoolley]

Here we go again. Operating Engineers is moving to reclassify land surveyors as laborers and mechanics with the Department of Labor.

Land surveyors are licensed in all 50 states. California has been licensing land surveyors since 1891 - almost 40 years before licensing engineers and yet, an engineer's professional status in never in question.

In California, there are approximately 4,200 licensed professional land surveyors compared to approximately 1,100 unlicensed technicians in Operating Engineers in Locals 3 and 12 combined. Licensees are 4:1 not counting the LSITs and non-union technicians that equate to several thousand more people working in the professions.

The reason for this reclassification is for land surveyors to lose professional status on federal contracts and be subject to prevailing wage. In California, the Labor Code sections 1720-1773 requires prevailing wage on all public works projects with few exceptions. The only exception to Davis-Bacon prevailing wage would be federal enclaves i.e. military bases. Any mixed funding of state, county, city with federal funds will trigger prevailing wage. There are very few land surveyors working on federal enclaves. The profession is being crashed for handful of projects that 99% of the professional land surveyors will never work on. Also, there are license exemptions for some federal work.

What is the difference between how a laborer gets public contract work compared to a professional? Laborers hustles low bid contracts, professionals get contracts by Qualification Based Selection (QBS). Laborers are not licensed and this is a long stride towards deregulating the profession.

I have commented many times on how our community is described in writing by Operating Engineers. In the eyes of OE we are full fledged donkeys, incapable of judgement and independent thought - they said so in writing. To be precise, the following is a quote from their argument to make us laborers:

“No Judgment or Discretion in Executing Directions of Office Surveyor

In performing their work, the survey crew uses predetermined locations and directions drawn up by the office surveyor. If errors in calculations are discovered by the field surveyor when he or she places laths and hubs in the field, the field surveyor notifies the project manager, registered engineer, or licensed office surveyor. One of these professionals corrects the problem and provides the field surveyor with the corrected information.”

[How humiliating is this description of our profession? How much time is spent setting hubs today? Does anyone reading this forum have someone as described working in their firms? If so, what do they actually do for the company? Bump into walls walking in circles? Wait, this means we pay $80/hr for a person with no judgement or discretion? Absolutely not, I have known plenty of union surveyors and they are not straight up donkeys as described. Imagine paying dues to someone that calls you a dolt in writing to the DOL.]

“No State Licensure or Certification for Field Surveyors

States and municipalities do not require that field surveyors hold a license or certification. By contrast, as discussed below, all states require licensing of office surveyors . The fact that the job of office surveyor requires licensure and the job of field surveyor does not even require certification demonstrates a vast difference in levels of skill, knowledge, and responsibility involved. The WHD [Wage and Hour Division] should view the absence of licensure or certification requirement as a key factor in determining that work that is not “mental”, as the term is used in 29 C.F.R. 5.2(m).”

[The law does not distinguish field and office surveyors, nor should it. Never mind their statement "States and municipalities do not require that field surveyors hold a license or certification". Caltrans has required a license for over 30 years and almost every agency minimally requires a LSIT license. Wait, is it appropriate to lie in writing to the DOL? Who does that?]

Additionally, the IUOE Letter, Page 19 states:

“F. Field Surveyors Are Clearly Not “Professional,” “Semiprofessional,” or “Subprofessional”

In the Davis-Bacon context, the WHD has issued opinion letter characterizing work as “subprofessional” and “semiprofessional” as a justification for failing to extend coverage to skilled tradespersons. These terms are not used by the WHD in the FLSA [Fair Labor Standards Act] context. The FLSA exempts professional employees, not semiprofessional or subprofessional employees.

In any event, a field surveyor is clearly not a professional, or even a “subprofessional” or “semiprofessional.” There is no requirement that field surveyors be licensed or even obtain certification. There is no requirement that a field surveyor have a college degree or even a high school diploma. A GED is sufficient". [emphasis added]

[More lies in writing. I suspect Caltrans is the largest single employer of land surveyors and their folks are all licensed as an MQ. Nationally, several states require a four year degree to sit for a licensing exam. I do not know of a single instance in which the law distinguishes field and office surveyors, simply surveyors that choose to work in field or office or both.]

For more information, please refer to yesterday's NSPS podcast "Survey Says!" number 121. For those anti-NSPS membership folks, please mount your campaign with, the US Department of Labor against being reclassified as laborers and mechanics - keep us posted on your progress and let me know how we can help you fight the reclassification. https://surveyorsays.podbean.com/

I do not want to surrender professional status and QBS contracting for public works.

DWoolley

[Dave Lindell]

Why not turn the tables on the Operating Engineers and say if they want to declassify surveyors then we will lower their wages to the California minimum. I'm sure they used the argument that surveyors were professionals in order to justify the wages they demand.

[mpallamary]

I must ask again (again, again, again, again, again) why doesn't CLSA make a statement, issue an opinion, or do something? Anything???

[Warren Smith]

Michael,

The Board voted today to authorize the Executive Committee to draft such an opposition letter. I will sign it and transmit it to the appropriate agency.
NSPS is also strongly advocating against it.

[CBarrett]

Has a copy of the local 12 letter gone out to board members and chapter officers? I'd like the opportunity to read it in it's entirety.

[Warren Smith]

We can do that - this just came to light this week.
See Dave Wooley's post above for background.

[Bullet_Proof]

In regards to the above letter, I dug through the Code of Federal Regulations Title 29 and can't find the above reference.
Is there a chance a link to the section can be sent? Chance of getting the letter too?

Thanks,
Jeff Vest

[mpallamary]

Thanks Warren!

[DWoolley]

In regards to the above letter, I dug through the Code of Federal Regulations Title 29 and can't find the above reference.
Is there a chance a link to the section can be sent? Chance of getting the letter too?

Thanks,
Jeff Vest

The reference to Title 29 was in the Operating Engineers, Local 12 letter. It may very well be false - like most things in the letter. I have tried to attach the letter multiple times and in multiple compressed formats. I am over it. There is a lot to read here: https://www.nsps.us.com/page/DavisBacon

There is an NSPS Town Hall Meeting on Tuesday, May 10 at 1pm/PT to discuss the reclassification. A link can be found here: https://register.gotowebinar.com/regist ... 0424882700

DWoolley

[DWoolley]

The NSPS letter opposing land surveyors being reclassified as laborers and mechanics is attached.

Operating Engineers is attempting to deregulate the professional status of the land surveyor.

OE 12 signatory firms are nearly valueless due to the unfunded pension liability. Engineering companies are realizing the unfunded pension liability has devalued their firms and unfortunately for the owners, there are not enough suckers in the A&E market to purchase the nearly valueless firms. It is the equivalent of purchasing a maxed out credit card for the full value limit. The only remaining value is the hard assets, drafting tables anyone?

Many of the trade unions have fully funded pensions - our signatory firms would be much better off if our union brethren belonged to a better managed union. Technically and ironically, the signatory professional community would be considerably better off being signatory with the Laborers' union. The Laborers union has a fully funded pension and has lowered their retirement age and increased their benefits. In contrast, after 15 years of a recovery plan, OE 12 has only recently moved their pension to 68% funded - a full 3% above critical status and celebrating their status in the "endangered zone" - as we head into this next deep recession that is sure to put them back into the critical zone. Local 12 retirees have not had a raise since 2007, shameful. For context, retirees receive $58 a credit and with COLA/inflation it should be $80.87. Please deliver canned goods and nonperishables to the folks that we worked alongside for many years - they are good folks and the idea of them on cat food diets is troubling.

Personally, I am a supporter of well managed unions (that recognized the usefulness of email before 2020), with an up-to-date apprenticeship programs (possibly geared towards licensure in our industry?) and importantly, welcomes everyone in a community to their membership and isn't over $2 billion in arrears for 11,000 retirees/qualified retirees. Asking to much? Lastly, a union that does not dishonestly - writing false statements - try to undermine and deregulate the profession that pays their member's wages, fringe benefits and busted pension contributions.

DWoolley

[TIB]

So they make you take mandatory survey classes for 4 years then say you ain't smart enuf to do calcs in the field on the fly. Really? I don't get it.
Some of the best surveyors I know came from Local 12 Apprenticeship program in the 80s. I am grateful for Local 12. They taught me a skill that I probably would not have learned on my own

[Mike Mueller]

Here we go again. Operating Engineers is moving to reclassify land surveyors as laborers and mechanics with the Department of Labor.

Dave, Just wanted to say thanks for keeping an eye on this topic so well.

Mikey Mueller
Sonoma County

[robert reese]

GETTING IT THROUGH OUR HARD-HATTED SKULLS
So...the Feds want to classify surveyors as mechanics and laborers. And the propaganda on the US Dept. Labor website touts this as "...creating several efficiencies in the current system...this would mean higher wages for workers..."
https://www.dol.gov/newsroom/releases/whd/whd20220311
It sounds great. But....
We surveyors have ourselves to blame, to a degree. How often do we portray surveying and surveyors with a hard hat? (I'm not advocating going WITHOUT hard hats on construction projects.) What percentage of time does the public see surveyors on a construction project? Hard hats abound. When you drive by the highway workers, what besides the orange vests identify these folks? Hard hats (and of course the little telescopy thingey they look through and the rod thingey someone is holding on to).
Firemen have their hats and hoses. Police have their hats, badges and cars with light bars. Airline pilots have their pilot hats and epaulettes. Ready haberdashery that, in sillouhette are immediately identifiable symbols of the profession.
Doctors have their stethoscopes (but no hats). Lawyers have their scales of justice (but no hats). Engineers have their plans (but no hats). So what should we surveyors adopt? There are hard hats that look like cowboy hats, climber helmets, short billed hats, full brimmed hats. Perhaps a black hard hat in the shape of a bowler, as seen in the "old timer" photographs would be appropriate as a tip of the hat (see what I did there?) to our predecessors. Hmmmm... might lend a bit of distinction (distinguishness?).

I digress...back to my rant about the USDOL proposed classification of surveyors. So, as outlined in the opposition and disagreement letters from NSPS and CLSA, why do we "oppose" or "disagree" with something patently incorrect? If this matter is wrong or misguided or founded on untruths or misinformation, why not just say "this is wrong" rather than "disagree" or "oppose". This seems to give some credibility to the posited position in the first place. I say we have a contest. Laborer, mechanic and land surveyor gladiator games. First one to figure out the height of a flag pole using trigonometry and a knotted rope does not get fed to an earth scraper.

[CBarrett]

Firemen have their hats and hoses. Police have their hats, badges and cars with light bars. Airline pilots have their pilot hats and epaulettes. Ready haberdashery that, in sillouhette are immediately identifiable symbols of the profession.
Doctors have their stethoscopes (but no hats). Lawyers have their scales of justice (but no hats). Engineers have their plans (but no hats). So what should we surveyors adopt? There are hard hats that look like cowboy hats, climber helmets, short billed hats, full brimmed hats. Perhaps a black hard hat in the shape of a bowler, as seen in the "old timer" photographs would be appropriate as a tip of the hat (see what I did there?) to our predecessors. Hmmmm... might lend a bit of distinction (distinguishness?).

What you are talking about here is the concept of Branding. Surveyors need to do better job at branding the profession. The need for this often becomes obvious during the exercise of putting together a business plan, (lack of branding is one of our weaknesses). Then we can identify how to overcome this weakness... we can look for help and ideas in the workings of our corporates counterparts. Large companies usually have excellent branding, because they put a lot of time, effort and S$$ into it. Surveyors, being a smaller group would have to scale those efforts to appropriate size.
Usually this is exactly why we organize out selves into professional associations - to help with things where group efforts are needed to support the profession.

This is not going to happen when we have people taking small bites and pulling in 144 different directions.....
Thankfully I am seeing NSPS being little more educated about taking few more steps in the direction of profession branding than CLSA. I'd like to see some changes in this direction....

Here is a random copy and paste with branding advice. It may serve to bring into focus how many surveyors are likely to struggle with answering some of the basic questions...

Ten Tips for Developing Your Brand
1. Figure out who you are.
2. Determine what you want to be known for.
3. Define your audience.
4. Research your desired industry and follow the experts.
5. Ask for informational interviews.
6. Embrace networking.

[DWoolley]

From the USDOL link provided by Robert Reese:

"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 California, that is a knee slapper. A non-union party chief working on a prevailing wage project is paid approximately $82/hr (no healthcare deduction as permitted by LC 1771) and the chainman, regardless of experience, is about $78/hr.

How is that possible? The state uses the mathematical mode to determine wages rather than a fair mean, or the median. Mode, you say? Yes, the mode is the number that presents itself most frequently in a sample set. Because all union people are paid exactly the same in a jurisdiction they will always represent the mathematical mode. Awesome, right?

The fact a business has to pay someone with less than one year of experience journeyman wages is intended to keep employers from hiring newcomers into the industry. Imagine paying a full-time employee with one year experience (or less) $156,000 (2000 hours x $78) annually. This is more pay than most licensees earn.

The penalty for failure to pay properly - which can be assessed to a business owner and/or manager as an individual (no corporate shield from liability LC 558.1) - is a maximum of $200 a day, but cannot be reduced to less than $40 a day. These penalty assessments are tolled 7 days a week for the duration of the project (statute of limitations is 18 months after the filed notice of completion). For example, a crew does two days of topography for a design (pre-construction LC 1720), the project is designed (several months elapsed time), bid and built two years later. The business owner, for two days work, would owe $200x735 days (2 years)x 2 (number of employees) equals $292,000 in penalties. The minimum allowed by law, should the Labor Commissioner offer mercy, would be $58,000 or so.

That is precisely what they mean when they say "return to prevailing wage".

I hate to be the bearer of bad news, but there are several existing laws in the California Labor Code that are worse for employers than using the mathematical mode to tilt wages to a union's advantage.

Thanks for taking the time to write Mikey Mueller. I appreciate it.

DWoolley

[mpallamary]

If there is a real incentive AND desire to change things, CLSA ought to host a one-day conference on elevating our image. In order to do that, egos have to be left at the door and we need to have a frank conversation with each other.

We have no one but ourselves to blame.

No one.

[CBarrett]

If there is a real incentive AND desire to change things, CLSA ought to host a one-day conference on elevating our image. In order to do that, egos have to be left at the door and we need to have a frank conversation with each other.

Surveying is not likely to survive as a profession unless we make changes.
We need to behave like scientists, and not peddle dogmas.

[mpallamary]

I agree!