Davis Bacon Act - PW or No PW

[Trevor Turano]

Good Afternoon All,

I am trying to get to the bottom of this question. Apparently, it is extremely difficult to find documentation to whether or not Surveyors get paid prevailing wage rates while working on Federally funded project when performing construction staking. It has always been to my knowledge that when performing construction staking surveyors do get paid PW but not when doing the preliminary topographic design phase. Can someone please correct me in this matter and send some documentation to prove it one way or the another. I appreciate your time with this matter.

Sincerely,
Trevor Turano

[DWoolley]

A complex question. The answer varies depending on a few specifics:

1. When was the work completed [year]?
2. Which state was the work completed?
3. Was the funding federal only? No state funds [which includes administration by a state agency].
4. Was work completed on a federal enclave? Camp Pendleton, Miramar, Travis AFB, or a Reservation.
5. Was the work genuinely construction, in support of construction or immediately prior to construction?
6. Was the work completed "on-site"?
7. Was the work completed field work? Not managerial i.e. a Construction Manager or professional work?

There was an opinion issued by the USDOL last week. I will post it when I get in the office tomorrow.

Catch up reading can be found here: https://www.nsps.us.com/page/DavisBacon ... d+bacon%22

History of Davis Bacon

Readers may find the history of Davis Bacon interesting. In a world with systemic racism supposedly lurking around every corner and the lingering effects of the legacy racism i.e. Jim Crow laws, red lining, [math] etc. nobody, I mean nobody, mentions Davis-Bacon - which passed in 1931. Red lining ended in 1948 federally (Shelley v. Kraemer) and sometime thereafter in California. Jim Crow laws have a staggered history - Plessy v Ferguson, Brown v. Board of Education, Civil Rights Act of 1964 and yet, Davis Bacon remains in effect.

The Davis-Bacon law was passed with a singular purpose in mind - to keep Black construction workers out of the construction trades during the Depression [and forever after]. WPA projects at the time. A VA hospital project was the impetus and the proverbial straw. For example, research the Black labor history on Hoover Dam. For the lazy, in 1933, there were only 24 African Americans in a work force of 4,000 men. In the South, there were more than 10,000 WPA supervisors and 11 were Black supervisors.

Nepotism, friends and family, is often how folks find work in construction, do the math. Unions and apprenticeships prohibited Black membership well into the 1950s - because this became unlawful doesn't mean the practice ended, not by any measure. Any interested readers, I recommend Thomas Sowell. As the story goes, Black folks, prior to Davis Bacon, owned the construction industry. Sowell describes, as a child, there was a white man on a construction site, besides being the talk of the town, it was so peculiar the folks in town would drive by to see it for themselves.

Davis Bacon was one of the few federal programs that worked exactly as it was intended and serves the same purpose just as well today. Davis-Bacon is camouflaged and unabashedly touted as "good paying jobs" and "a living wage", but Davis-Bacon is modern day Jim Crow, 100%.

Don't take my word for it, research it for yourself.

I did 1.5 hour Ten Minute Surveyor on Davis-Bacon. It sits in the can. The news clips of our President and the Secretary of Transportation, separate occasions, smiling and selling "Davis-Bacon wages" last year was, ah, interesting.

DWoolley

[DWoolley]

The USDOL final rule of Davis-Bacon came out this month. The entire document is more than 800 pages. As it pertains to land surveying, the rules starts on page 312 and ends on page 327. I have included the first page with the land surveying pages.

All the kings horses and all the kings men...

DWoolley

[DWoolley]

A complex question. The answer varies depending on a few specifics:

1. When was the work completed [year]?
2. Which state was the work completed?
3. Was the funding federal only? No state funds [which includes administration by a state agency].
4. Was work completed on a federal enclave? Camp Pendleton, Miramar, Travis AFB, or a Reservation.
5. Was the work genuinely construction, in support of construction or immediately prior to construction?
6. Was the work completed "on-site"?
7. Was the work completed field work? Not managerial i.e. a Construction Manager or professional work?
...
DWoolley

Short version, prior to 2012-13 and after 2020, a seven year window, federal construction surveying work was not subject to prevailing wage. Federally, land surveyors are classified as professionals, professionals are exempted from prevailing wage according to the FSLA. Prevailing wage only applies to laborers and mechanics. Also excluded are supervisory staff. Besides, being professionals, there are no federal prevailing wage rates for land surveyors.

Some states have their own prevailing wage rates, some states do not. In California, land surveyors are subject to prevailing wages if state [public awarding body, with a couple of exceptions for local bond money] money is mixed and matched with federal money for a construction project. A California public agency managing a federal contract may trigger prevailing wage due to the California money being spent. For the curious, in California the prevailing wage rate is determined by the mode of land surveying wages. The mode is the number most often repeated - because the union folks are all paid the same, regardless of skillset, their payrates are the mode.

Construction work completed by land surveyors on federal enclaves are not subject to prevailing wages, except for the years 2012-2013 through 2020. In these years, only the chainman was subject to receiving prevailing wages [party chiefs are supervisory - citation is on the NSPS site link provided in an earlier posts]. The new Final Rule, which will soon be in effect, makes it a case by case determination. Safest to assume the construction work is subject to prevailing wage.

In California, when state/county/city/special district money is mixed with federal money the topography for design and construction is subject to prevailing wage. See California Labor Code 1720. This law conflicts with California Labor Code 1723 - land surveyors are not technically labors and/or mechanics [do not make this argument for not paying prevailing wage]. Field surveying for construction and topography for design is subject to prevailing wage. There are some criteria as to the size of the project. Safest to assume the field land surveying work is subject to prevailing wage.

Off-site work is not subject to prevailing wage. This exemption is often applied to pre-fabricated work not being prevailing wage.

I welcome questions and will gladly provide citations if asked a specific question.

Freebie 1: The current fine for a California Civil Wage and Penalty Assessment (CWPA), pronounced Co-wop-A by DIR folks, is $200 per day per person, including weekends and only allows for a minimum reduced fine of $40 per day for every day of the violation. In practice, California city project, company sends out a two-person crew to do three days of topo for design, on the second day the company substitutes a chainman. The project goes to construction three years later. A project audit uncovers the land surveyor did not pay prevailing wage. Here is the CWPA math:

365 days x 3 years = 1,095 days x 3 people x $200 per day = $657,000 fine. Suppose the state takes mercy and reduces the fine to the minimum allowed by law, $131,400, plus the employer has to pay the back wages based on the delta between prevailing wages and actual wages paid. Upside, the state will not usually file a CWPA on a good faith first time offender. Employers can be personally responsible, no corporate veil, under Labor Code 558.

The statute of limitations is 18 months after the Notice of Completion [completion of construction]. Keep in mind, not all agencies file notices of completion. No notice, no statute of limitation.

Freebie 2: Prevailing wage includes the fringe benefit costs. Do not donk and pay the employee the basic hourly rate "because you offer fringe benefits like heath insurance and vacation". It does not work like that. See California Labor Code 1773. This is not the place for the Benson land surveyor's criminal nature to circumvent common sense - you're much better served by continuing with the Benson style failure to file, Carl Lewis surveys, record boundaries and the two monument tango surveys.

Freebie 3: Violation of the California Labor Code 1720-1783 [or so] includes several felonies. In 2016, I sat through a 3 day trial for a 63 year old owner of a heating and air conditioning company with four employees. I also attended his sentencing, three years in a minimum security prison [jail is limited to serving less than one year]. He was the sole provider for his family. Judge said "...I can see you appeared today not prepared to be remanded into custody. Based on your word and surrendering your passport, I will give you 60 days to get your affairs in order". I imagine that did not end well, he had never been in trouble before - according to his lawyer's statement.

Freebie 4: Do not take anyone's word, including my own, for prevailing wage determinations. There is no shortage of bad advice.

DWoolley

[Trevor Turano]

Mr. Wooley,

Thank you very much for your detail response in this matter.

Thank you
Trevor Turano

[DWoolley]

Federal citations: https://www.dol.gov/agencies/whd/field- ... -15#B15e20

15e15 Managerial and professional employees.

(a) An individual employed in a bona fide executive, administrative, or professional capacity, as defined in 29 CFR Part 541, is not a laborer or mechanic for purposes of DBRA.

[This is where surveyors were not previously subject to Davis-Bacon i.e. recognized as professionals. I would read the Final Rules posted earlier for the new policies to be effective and the criteria in making the determination.]
...

15e20 Survey crews.

(a) Where surveying is performed immediately prior to and during actual construction, in direct support of construction crews, such activity is covered by DBRA. Under the U.S. Housing Act of 1937 and the Housing Act of 1949, the development of the project coverage test is broader and may also cover preliminary survey work.

(b) The determination as to whether certain members of survey crews are laborers or mechanics is a question of fact. Such a determination must take into account the actual duties performed. 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.

[Welcome to the loss of professional status, deregulation. The loss of QBS will be next. If you wake up in the morning and feel like the land surveying work is akin to being a ditch digger, you're a realist. The former comparisons land surveyors made to the engineers, architects and other professionals is no longer applicable. We should embrace our laborer status with humility. The land surveyor's lackadaisical attitude towards standards, rules and laws, has allowed others to make the rules for us. See you in the ditch, shoulder to shoulder.].

DWoolley

[hellsangle]

If you wake up in the morning and feel like the land surveying work is akin to being a ditch digger, you're a realist.

Come on, Dave . . . such a statement ("you're a realist") may make some think that you are a proponent of deregulation. Which I know is not true.

[Peter Ehlert]

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I'm not going to click on your link. Smells like Spam or malware to me

[hellsangle]

I hear ya, Peter!

The trolls have visited our site several times

Happy hump day